i 


COURT  OF  APPEAL 


>ellate  District 


I 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A  TREATISE 


LAW  OF  IDENTIFICATION 


A  SEPARATE  BRANCH  OF  THE  LAW  OF  EVIDENCE. 


IDENTITY  OF  PERSONS  AND  THINGS  — ANIMATE  AND  INANIMATE 
—  THE  LIVING  AND  THE  DEAD  — THINGS  REAL  AND  PER- 
SONAL—IN CIVIL  AND  CRIMINAL  PRACTICE  — MIS- 
TAKEN IDENTITY,   CORPUS  DELICTI— IDEM 
— OPINION  EVIDENCE. 


BY 


GEORGE  E.  HARRIS, 


OF  THE  WASHINGTON,  D.  C.,  BAR,  AND  THE  BAR  OP  THE  IT.  S.  SUPREME  COURT. 
AUTHOR  OF  CONTRACTS  BY  HARRIED  WOMEN,  THE  LAW  OF  SUB- 
ROGATION, AND  DAMAGES  BY  CORPORATIONS. 


ALBANY: 

H.  B.  PARSONS,  LAW  BOOK  PUBLISHER. 
1892. 


Entered,  according  to  Act  of  Congress,  in  the  year  eighteen  hundred  and  ninety-two, 

BY  H.  B.  PARSONS, 
In  the  office  of  the  Librarian  of  Congress  at  Washington. 


PREFACE. 

V) 


In  presenting  this  treatise,  the  writer  is  not  unmindful  that  we 
have  valuable  works  by  many  able  writers,  and  on  many  divisions  or 
branches  of  the  law  of  Evidence,  not  less  than  twenty  authors  hav- 
ing furnished  us  works  on  the  various  divisions.  As  they  saw  fit  to 
divide  it  into  about  seventeen  branches,  too  tedious  to  enumerate 
here,  but  not  one  devoted  to  the  evidence  of  identification,  a 
branch  of  the  subject  which  is  daily  before  the  courts  in  its  various 
phases,  the  writer  has  deemed  it  needful,  and  of  sufficient  import- 
ance to  justify  a  treatise,  and  hence  this  work.  The  writer  has  en- 
deavored to  treat  of  the  identity  of  persons  and  things,  living  and 
dead,  animate  and  inanimate  ;  things  real  and  personal  —  in  civil 
and  criminal  practice  in  England  and  America.  The  various  means 
of  identifying  the  living  and  the  dead,  the  prisoner  and  the  injured 
or  killed:  by  circumstances  ;  appearance;  clothing;  photographs; 
voice  of  the  living;  by  opinion  evidence;  weapons  and  other 
articles,  etc.  Of  things  :  view  of  premises  by  the  jury  ;  portable 
goods  in  court  for  inspection  ;  compulsory  physical  examination  for 
identity  of  the  person  or  extent  of  injuries.  Identity  of  real 
estate  :  by  monuments  and  objects  ;  courses  and  distances  ;  metes 
and  bounds  ;  descriptions  in  deeds  and  wills.  Personalty  :  in 
chattel  mortgages,  and  where  the  subject  of  replevin,  larceny  or 
robbery.  Ancient  records  and  documents:  judgment  entries; 
liens  ;  pedigree  and  heirship.  Handwriting  :  subscribing  witness  ; 
comparison  ;  conflict.  Including  corpus  delicti  :  idem  sonans, 
and  mistaken  identity,  etc. 

It  may  be  observed  that  the  writer  has  omitted  the  subject  of 
death  by  poisoning  and  drowning.  The  omission  is  intentional. 


IV 


PKEFACE. 


The  question  is  referred  to  only  to  recognize  its  existence.  It  be- 
longs to  another  science,  and  much  has  been  said  and  written  upon 
it,  and  writers  and  experts  have  so  far  disagreed,  that  if  the  writer 
had  the  ability,  time  and  inclination,  he  would  not  have  space  in 
this  work  to  reconcile  a  conflict  so  hopeless.  These  subjects,  in- 
volving the  questions  of  identity  above  referred  to,  have  been  no- 
ticed by  the  writers  on  the  law  of  Evidence,  but  it  will  be  seen  that 
they  have  given  to  identification  only  a  passing  notice. 

The  writer  has  endeavored,  with  industry  and  access  to  the  full 
and  complete  library  of  Congress,  to  collect  all  the  leading  cases  and 
valuable  material  on  this  subject,  to  be  found  in  the  adjudged  cases, 
both  in  England  and  America,  not  citing  all  the  cases,  of  course,  but 
sufficient  to  support  each  proposition ;  and  in  so  doing,  he  was  not 
content  in  giving  a  mere  abstract  principle  of  law.  This  might  be 
sufficient  for  the  practitioner  who  has  daily  access  to  a  complete 
library ;  but  is  not  satisfactory  to  those  less  favored.  So  it  has  been 
deemed  better  to  illustrate  principles  by  given  cases  which  have  been 
adjudged  —  sometimes  giving  a  brief  statement  of  the  facts  which 
involve  the  point,  and  often,  for  greater  certainty,  drawing  upon  the 
language  of  the  court.  And  again,  in  this  style,  in  the  various  con- 
flicts in  decisions,  the  reader  has  the  reasoning  on  both  sides.  With 
these  suggestions,  this  work,  though  imperfect  it  may  be,  is  respect- 
fully submitted  to  the  consideration  of  a  generous  profession. 

GEO.  E.  HARKIS. 

WASHINGTON,  D.  C.,  1892. 


CONTENTS. 


CHAPTEE  I. 

INTRODUCTION. 

SEC. 

Identity  of  persons  and  things 1 

Means  of  identifying  —  persons  by  name  —  rule  as  to 2 

Personal  identity  by  personal  appearance 3 

Same  —  means  of  knowledge  —  proofs  to  be  made 4 

Same  —  uncertainty  of  personal  identity 5 

Same  —  by  circumstances  —  opinion  evidence 6 

Same  —  opinion  evidence  —  when  admissible 7 

Circumstantial  evidence  —  identity  of  accused. 8 

Tracks  found  near  scene  of  crime 9 

Clothing  of  the  deceased  exhibited  to  the  jury 10 

Same  —  dress  —  identity  of  person  —  murder  —  rape 11 

Personal  identity  by  photograph  —  various  purpose 12 

Personal  identity  by  the  voice  —  when  admissible 13 

Same  —  rule  in  Texas  —  arson  —  and  Massachusetts  —  attempt  at  arson 14 

Dead  bodies  —  identification  thereof 15 

Same  —  body  when  burned  or  drowned 16 

Identification  of  dead  body  by  teeth 17 

Land  —  identification  by  deed 18 

Realty  —  bounded  on  a  pond  —  ditch  cut  on  land 19 

Same  —  bounded  on  a  river  —  not  navigable 20 

When  river  the  dividing  line 21 

Requisites  —  description  —  tax  deed  —  construction 22 

Personal  property  —  necessity  for  identification 23 

Description  —  mule  —  horse  —  oxen 24 

Animals  described  —  chattel  mortgage  —  sufficiency * 25 

Animals  and  other  personalty 26 

Description  —  what  to  include  —  uncertainty 27 

Same  —  when  valid  —  false  description 28 

Stolen  property  —  identity  of  —  marks  and  brands 29 

Same  —  cattle,  etc., —  rule  in  Texas  and  North  Carolina 30 

Money  —  cask  —  proof  —  production  —  identity 31 

Larceny  —  requisites  —  identity  of  owner  and  goods 32 

Portable  goods  brought  into  court  for  identification 33 

Burglary  —  larceny  by  millers  —  adulteration 34 


vi  TABLE  OF  CONTENTS. 

CHAPTEK  II. 

IDENTIFICATION  OF  PERSONS. 

SBC. 

Identified  by  the  voice  —  rule  in  Texas  —  arson 35 

Same  —  rule  in  Massachusetts  —  attempt  at  arson , 36 

Recognition  by  the  voice  —  rule  in  Massachusetts  and  New  York 37 

Recognition  by  the  voice  —  identity 38 

Identity  of  persons  and  things 39 

Dissimilarity  of  persons  —  proof  of  identity  —  assurance 40 

Personal  identity  —  flash  of  a  gun  or  pistol  in  the  dark 41 

Same  —  a  later  English  case  —  identity 42 

Same  —  experiments  by  professors  —  experts 43 

Memory  of  features  —  discrimination 44 

Burglary  —  mistaken  identity  45 

Lost  child  —  marks  —  identity —  experts 46 

Comparison  —  identity  of  persons  and  things 47 

Uncertainty  in  personal  identity 48 

Bigamy  —  identity  of  the  second  wife 49 

Indictment  —  variance  —  divorce  —  confrontation 50 

Action  to  enforce  specific  performance  —  heirship 51 

Ancestor  —  identity  of  —  claim  to  land 52 

Same  —  claim  to  land  —  identity  of  name    53 

Name  —  identity  —  person  —  remote  transaction 54 

Bigamy  —  perjury  —  weight  of  evidence „ 55 

Name  in  deeds  — presumption  of  identity 56 

Instruments  of  crime  —  personal  identity 57 

Size  of  the  person  to  be  identified 58 

Personal  appearance  —  peculiarities 59 

Instrument  used  by  criminal  —  identity 60 

Impressions  made  by  the  teeth 61 

Bastardy  —  evidence  of  identity  —  rule  in  Maine 62 

Same  —  rule  in  Indiana 63 

Seduction  —  administering  drugs 64 

Bastardy  —  criminal  conversation 65 

Legitimacy  —  bastardy  —  rule  in  North  Carolina 66 

Bastardy  —  identity  —  rule  of  evidence 67 

Bank  check  —  false  representation  —  risk 68 

Retailing  and  larceny  —  personal  identity 69 

Circumntantial  evidence  of  personal  identity 70 

Larceny  of  a  package  of  money  —  identity  of  the  thief 71 

Fictitious  appeal  bond  —  indictment 72 

Rape  —  identity  of  accused  —  clothes 73 

Threat  to  take  life  —  verdict 74 

Circumstantial  evidence  of  identity 75 

Personal  appearance  —  human  identity  —  evidence 76 


TABLE  OF  CONTENTS.  vii 

CHAPTER  III. 

NAME  — IDEM  SONANS. 

SEC. 

Names  — words  —  idem  sonans —  verdict 77 

Misnomer  —  abbreviation  —  recognizance 78 

Same  —  indictment  for  a  nuisance 79 

Christian  name  —  initial  letter 80 

First  name  omitted  —  effect  —  abatement 81 

Misnomer  —  abatement — addition  —  surname 82 

Militia  —  execution  —  wrong  name 83 

Misnomer  —  defective  orthography 84 

Bond  —  names  —  sureties  —  rule  in  Illinois , 85 

Names  —  not  idem  sonans — "  Henry  "  and  "Harry" 86 

Misspelled  name  —  firm  name  —  strictness 87 

Name  —  idem  sonans  —  larceny 88 

Same —  bigamy  —  name  of  wife 89 

Names  — spelling  — sound  alike  —  idem  sonans 90 

Suit  on  check  —  identity  of  bank 91 

Promissory  note  —  to  cashier  of  bank  —  rule  in  Indiana 92 

Note  in  bank  —  indorsement  —  identity  of  bank  and  cashier 93 

Note  —  where  payable  —  silent  —  presumption 94 

Idem  sonans  —  verdict  —  indictment 95 

Same  —  indictment  —  assault  and  battery 96 

Corporation  —  name  of  railroad  —  rule  as  to 97 

Name  of  indorser  —  witness  — defendant. 98 

Same  —  identity  of  name  —  person 99 

Identity  —  plaintiff's  name  — ' '  Lubuke  "  and  ' '  Lubukee  " 100 

Introduction  by  name  —  fraud 101 

Land  certificates  —  deeds  —  names 102 

Deed  to  land  —  married  women ..., 103 

Verdict  —  incorrect  orthography  —  effect 104 

Same  —  defective  orthography  —  when  not  fatal 105 

Names  in  actions  —  rule  in  England  —  identity 106 

Report  of  death  —  identity  of  plaintiff 107 

Identity  of  plaintiff  by  name 108 

Parties  to  actions  —  identity  of  —  general  rule  109 

Same — grantor  —  initials  —  deceased  plaintiff 110 

Name  —  person  —  presumption . .  Ill 

Malicious  mischief  —  boys  —  identified  in  court 112 

Proof  of  identity  —  letters  —  ancient  documents * 113 

Soldier  —  name  —  land  patent  —  family  record -   114 

Name  —  presumption — proof  of  signature 115 

Name — proof  —  deed  —  presumption  —  identity 116 

Identity  of  name  — when  sufficient  to  identify  the  person 117 

Junior  —  middle  letter  —  name  —  immaterial  variance 118 

Identity  of  name  —  goods  delivered  to  a  swindler 119 

Same  —  goods  delivered  —  same  name 120 

Identity  of  stranger  by  name  merely 121 


viii  TABLE  OF  CONTENTS. 

SEC. 

Same  name  —  father  and  son  —  rule 122 

Weight  of  evidence  as  to  identity  —  indictment 123 

Name  —  presumption  of  identity  —  burglary „ 124 

Forgery  —  opinion  evidence  — signature 125 

Inference  or  conclusion  —  opinion „   126 

Liability  assumed  by  a  stranger 127 

Courts  will  not  presume  identity 128 

Name  —  rule  in  election  cases  —  contest 129 

Same  —  elections  —  rule  in  several  States 130 

Same  —  contest  for  office  —  rule 131 

In  a  contested  election  case  in  Michigan 132 

Application  of  the  rule  —  idem  sonans 133 

Name  in  indictment  —  variance  —  where  immaterial 134 

Murder  —  name  of  deceased  —  idem  sonans  —  rule 135 

Larceny  —  assault  —  name  of  injured  person 136 

Larceny — name  of  owner  —  rule  in  Texas , 137 

Retailing  —  name  of  the  vendee 138 

Growing  importance  of  idem  sonans  —  rule. ...,..,    . , , , 139 

CHAPTER  IV. 

IDENTITY  OF  PRISONER. 

Identity  of  prisoner  —  second  conviction  —  robbery 140 

Same  —  housebreaking 141 

Assassination  —  tracks  —  gun  shot  142 

Footprints  —  identity  —  rule  in  California. . .  . 143 

Tracks  in  the  mud  —  identification    144 

Tracks  —  jurors  examining  them 145 

Inspection  of  clothing  of  deceased 146 

Same  —  clothing  and  rug  identified 147 

Same  —  coat  and  pants —  rule  in  Texas , 148 

Same  —  case  of  assassination  —  rule  in  Texas 149 

Acts  —  weapons  —  motives  —  surroundings 150 

Same  —  blood-stains  —  rule  in  Missouri 151 

Recognizance  —  identity  of  prisoner 152 

Indictment  —  variance  —  name  153 

Weapons  —  how  to  be  identified 154 

Weapons  identified  by  comparison  —  anarchists 155 

Clothing  —  burning  —  bloody. , , , , , , , , , , . . , , , , , , , , , , , , , , , , , , , , , , , , ,  156 

CHAPTER  Y. 

PHOTOGRAPHS. 

Photograph  —  premises  —  when  admissible  in  evidence. 157 

Same  —  evidence  —  action  against  highway 158 

Photographs  of  two  dead  men  —  murder 159 

Widow  —  identity  —  photograph  of  dead  husband ...     160 


TABLE  OF  CONTENTS.  ix 

SEC. 

Photograph  in  case  of  bigamy  —  identity 161 

Use  of  photographs  in  case  of  bigamy 162 

Same  —  proof  of  good  likeness  —  expert 163 

Same  —  state  of  health  —  life  insurance 164 

Pictures  and  inscriptions  —  evidence  of  pedigree 165 

Two  photographs  of  child  —  rule  in  New  York 166 

Photograph  evidence  —  murder  for  life  insurance 167 

Dead  body  —  photograph  —  clothing  —  wound ...  168 

Photographic  view  of  premises  —  when  admissible 169 

Photograph  of  handwriting  —  plea  of  non  est  factum 170 

Photographic  copies  —  papers  withdrawn  —  identity 171 

Photograph  of  deceased  person  —  of  handwriting 172 

Photograph  of  handwriting  —  rule  in  Texas 173 

Same  —  rule  as  to  proof  of 174 

Test  of  genuine  handwriting  —  forgery 175 

Same  —  alleged  alteration  of  check 176 

Same  —  another  use  —  examining  bread 177 

Land  grant  —  signature  —  photograph  copy 178 

CHAPTER  VI. 

OPINION  EVIDENCE. 

Rule  as  to  experts  —  exceptions  —  opinions  of  witnesses 179 

Instances  of  exceptions  —  formerly  limited 180 

Same  — additional  instances  —  opinion 181 

Identity  —  non-experts  —  opinion  as  evidence 182 

Identity  of  persons  and  things 183 

Proof  of  identity  —  rule  of  evidence 184 

Non-expert  —  opinion  —  publication  —  insurance 185 

Same  —  same — railroad  accident  —  damages .186 

Same  —  same  —  ditch  —  effect  of  —  clothing  described 187 

Trespass  —  breach  —  opinion  of  witnesses 188 

Personal  identity  — opinion  of  witnesses , 189 

Non-expert  —  disease  of  slaves 190 

Same  —  injuries  —  rule  in  Kansas 191 

Same  —  rule  in  New  Hampshire  and  Indiana 192 

Same  —  murder  —  assault  and  battery 193 

Same  —  damages  —  values  —  rule  in  Indiana 194 

Same  —  general  rule  in  given  cases 195 

Same  —  railroad  —  damages — infancy 196 

Same  —  rule  in  Massachusetts  and  Connecticut 197 

Same  —  rule  as  to  water  power —  photograph 198 

Opinion  —  murder  —  blood  spots 199 

Same  —  sanity  of  testator  —  rule  in  Massachusetts ...  200 

Non-expert  — rule  in  Indiana. 201 

Same —  sidewalk  —  rule  in  Illinois 202 

Same  —  rule  in  New  Hampshire  and  Connecticut 203 

Non-expert  witness  —  rule  in  Vermont ...  204 

B 


x  TABLE  OF  CONTENTS. 

SEC. 

Same  —  rule  on  the  subject 205 

Opinion  —  as  to  the  value  of  a  gun 206 

Same  —  as  the  value  of  a  dog 207 

Opinion  of  temperature  —  heat  or  cold 208 

Same  —  instances  —  caution 209 

Opinion  —  value  of  real  property 210 

Opinion  of  witnesses  —  covenant  —  trespass 211 

Witness  —  opinion  of  the  horse 212 

Same  —  same  —  rule  in  Iowa 213 

Opinion  as  to  the  capacity  of  a  sewer 214 

Same  —  sickness  —  soundness  of  a  slave 215 

Opinion  —  breach  of  marriage  contract 216 

Same  —  larceny  —  wagon  tracks 217 

Same  —  murder  —  rule  in  Massachusetts 218 

Same  —  rule  in  Tennessee 219 

Opinion  testimony  —  rule  in  several  States 220 

Same  —  collision  —  vessel  —  distance 221 

Same  —  rule  in  Massachusetts  and  New  York 222 

Weight  of  opinion  evidence  —  rule , 223 

Same  —  rule  in  Kansas 224 

Opinion  —  value  of  personalty  —  damages . .  225 

Human  identity  —  opinion  of  witnesses  226 

Opinion  as  to  sanity  —  intoxication 227 

Intoxication  —  witness'  opinion  as  to  —  murder 228 

Same  —  when  opinion  admissible  229 

Murder  —  shooting  —  opinion 230 

Opinion  —  circumstantial  evidence  —  identity 231 

CHAPTER  VII. 

MURDER  —  IDENTIFICATION. 

Identity  of  deceased  —  prisoner  —  corpus  delicti 232 

Personal  identity  —  prisoner  —  dimensions 233 

Same  —  identity  in  the  night-time , 234 

Murder  —  identity  —  bones  and  shoes 235 

Murder  —  identity  of  deceased  —  New  York  statute ....    236 

Murder  —  administering  poison 237 

Identity  by  occupation  —  killed  the  barber 238 

Same  —  when  the  evidence  does  not  identify. . .   239 

Murder  —  blood-stains  on  a  shirt  —  identity 240 

Same  —  slave  indicted  —  identity  of  pass 241 

Murder  —  by  one  of  two  or  more  persons 242 

Of  accused  —  murder  —  larceny  243 

Same  —  robbery  —  evidence 244 

Of  child  murdered  —  rule  in  England 245 

Identity  —  murder  —  head  of  murdered  man 246 

Webster's  trial  —  identity  of  the  deceased 247 

Homicide  —  identity  of  the  deceased  248 


TABLE  OF  CONTENTS.  xi 

SEC. 

Decomposition  of  bodies  —  presumption 249 

Murder  —  alibi  —  opinion  —  circumstances  —  teeth 250 

Teeth  as  a  means  of  identity  —  age 251 

Of  dead  body  or  its  remains 252 

Dead  body  burnt  —  proof  of  corpus  delicti 253 

Same  —  strictness  in  proof  of  corpus  delicti .- 254 

Dead  body  found  in  the  water  —  death  by  drowning 255 

Body  exhumed  three  times  —  identified  by  the  teeth 256 

Artificial  teeth  —  identity  after  eleven  years 257 

Murder  —  identity  of  deceased  by  name 258 

Same  —  initials  —  rule  in  Georgia 259 

Same  —  murder  —  rule  in  Texas 260 

Same  —  assault  and  battery  —  rule  in  Texas 261 

Murder  —  blood  spots  on  boards  identified 262 

Same  —  tracks  and  a  mask  found 263 

Identity  of  window  —  skeleton  —  murder  trials 264 

Anarchists'  trial  —  dynamite  bombs  —  comparison  — identity £65 

Dress  —  a  circumstance  of  human  identity 266 

Murder —  pistol  —  examined  by  jurors 267 

Same  —  opinion  evidence  —  rule  in  Texas 268 

Killing  with  a  dirk  —  identity  of  weapon 269 

Murder  —  circumstance  —  suspicion  —  insufficiency. ... 270 

Same  —  circumstances  may  mislead  —  caution 271 

Murder  for  interest  in  an  estate 272 

Murder  —  indication  of  a  violent  death  —  identity  .    , 273 

Corpus  delicti — identification  of  the  dead 274 

Same  —  death  by  poisoning 275 

Identity  of  deceased  —  opinion  evidence 276 

Footprints  establishing  the  fact  of  murder   277 

Footprints  as  evidence  of  identification    278 

Footprints  —  tracks  —  murder  —  rule  of  evidence 279 

Impressions  made  by  clothing 280 

Firearms  —  proximity  —  direction  —  rule  as  to , .  281 

Infanticide  —  birth —  death  —  what  amounts  to 282 

Of  the  deceased  —  confession  —  identity 283 

Corpus  delicti — how  it  may  be  proved 284 

Circumstances  —  remote  and  proximate 285 

Death  —  the  result  of  criminal  agency 286 

Fatal  wound  —  dying  condition  —  identity 287 


CHAPTER  VIII. 

ANCIENT  RECORDS  AND  DOCUMENTS. 

Ancient  document  —  "at  thirty  years  old 288 

Same  —  rule  in  several  States 289 

Same  —  rule  in  Pennsylvania  and  New  York 290 

Ancient  writings  —  comparison  —  ejectment 291 


xii  TABLE  OF  CONTENTS. 

SEC. 

Same  —  deeds  —  evidence  —  rule  in  Illinois 292 

Expert  testimony  —  its  use  —  its  weakness 293 

Deed  —  will  —  thirty  years  old  —  evidence  —  execution 294 

Will  —  lands  —  possession  —  thirty  years 295 

Ancient  will  —  date  —  ejectment  —  rule  in  New  York 296 

Will  —  devisee  —  name  —  identity  of  testator 297 

Name  in  judgment  —  idem  sonans 298 

Identity  of  devisee  — evidence  of  heirship 299 

Railroad  accident  —  death  —  damages  —  identity  of  heirs 800 

Church  register — marriages  —  baptisms , 301 

Same — same  —  plea  of  infancy 302 

Proof  of  pedigree  —  rule  as  to  evidence  303 

Same  —  ejectment  —  agent  —  correspondence 304 

Same  —  declarations  —  documents  —  land  titles 305 

Of  child  —  legacy  —  necessary  evidence 306 

Church  register  —  day-book  —  evidence 307 

Children  —  when  legitimate  —  proof  of  marriage 308 

Church  records  —  evidence  of  pedigree 309 

Identity  of  parties  to  actions 310 

Ejectment  —  burden  of  proof 31 1 

Same  —  ancient  documents —  wills  —  deeds 312 

Same  —  holding  under  sheriff's  deed  —  name 313 

Married  woman  —  deed  to  land  —  in  former  name 314 

Evidence  of  identity  —  exceptions  to  general  rule 315 

Identity  of  ancestor — claim  of  land 316 

Judgment  docket  —  names  —  rule  in  Pennsylvania 317 

Same  —  idem  sonans  —  judgment  liens 318 

Judgment  —  defective  entry  —  effect  —  notice 819 

Same  —  purchaser  or  incumbrancer 320 

Judgment  —  indexing  —  when  is  not  docketing 321 

Same  —  index  —  rule  in  Nebraska 322 

Judgment  —  names  —  rule  in  Texas 323 

Same  —  same  —  rule  in  Iowa 324 

Name  misspelled  —  fraudulent  purchaser 325 

Entering  on  the  docket  —  when  lien  attaches ,..<..,,,, 326 


CHAPTER  IX. 

HANDWRITING  —  SUBSCRIBING  WITNESS. 

Identity  of  signature  of  attesting  witness  —  origin  of  the  rule  327 

Same  —  admission  —  rule  in  England  328 

Same  —  same  —  signature  of  attesting  witness 829 

Same  —  error  —  doubtful  rule  —  conflict 330 

Witness  out  of  the  way  —  collusion 831 

Reason  of  the  rule  —  difference  in  ruling 332 

Same  —  when  secondary  evidence  to  be  admitted 333 

Same  —  attesting  witness  avoiding  subpmna  334 


TABLE  OF  CONTENTS.  xiii 

SEC. 

Same  —  secondary  evidence  —  when  received 335 

Witness  —  signature  —  circumstance  not  remembered  336 

Same  —  same  —  rule  in  Kentucky 837 

Two  attesting  witnesses — one  absent 388 

Same  —  one  dead  —  one  in  Canada 339 

Witnesses  —  absence  to  be  accounted  for 340 

Same  —  power  of  attorney  —  presumption  of  death 341 

Witness  —  recollection  —  name  —  circumstances 342 

Bond  —  deputy  sheriff  —  signature 343 

Handwriting  —  of  subscribing  witnesses 344 

Proof  of  name  —  when  prima  facie 345 

Same  —  idem  sonans 346 

Deed  to  father  or  son  —  same  name 347 

Parties  to  actions  —  variance  —  name 348 

Identity  of  pilot  —  collision  of  vessel .  349 

Name  —  promissory  note  — •  suit  for  rent 350 

Subscribing  witness  —  proof  of .  351 

Photograph  —  writing  —  signature  —  evidence 352 

Authority  to  sign  the  name  of  another 353 

Subscribing  witness  to  promissory  note 354 

Ejectment  —  notice  —  witness  to 355 

Interested  witness  —  when  incompetent 356 

Witness  —  search  for  —  diligence  required 357 

Same  —  diligence  —  rule  in  United  States  Supreme  Court 358 

Subscribing  witness  —  secondary  evidence  —  general  rule 359 

Same  —  conflict  —  rule  as  to  handwriting 360 

Proof  of  receipt  —  common  carrier  —  early  rule 361 

Rule  as  to  admitting  secondary  evidence  of  signature.    362 

Search  for  attesting  witness 363 

Same  —  where  the  witness  disappears  364 

Diligent  search  for  witness  —  what  is 365 

Same  —  degree  of  search  —  good  faith 366 

When  contract  proved  without  writing 367 

Writing  —  knowledge  of  —  how  acquired 368 

Knowledge  acquired  from  examining  papers 369 

By  observation  and  comparison  370 

Attesting  witness  —  proof  —  when  and  how  made 371 

Attesting  witness  to  deed  —  proof 372 

Several  witnesses  —  necessity  of  calling  them 373 

Confession  by  obligor  —  not  sufficient 374 

Signature  —  admission  not  received 375 

Same  —  attesting  witness  —  satisfactory  evidence 376 

Fictitious  witness  —  attestation  —  evidence. 377 

Witness  to  instrument  —  identity  of  person  —  name 378 

Comparison  of  writings  —  rule  in  Massachusetts 379 

Assignment  —  indorsement  of  note 380 

Means  of  knowledge  —  handwriting 381 


xiv  TABLE  OF  CONTENTS. 

CHAPTER  X. 

HANDWRITING  —  COMPARISON. 

SEC. 

Handwriting  —  comparison  —  rule  in  England 382 

Expert  testimony  —  American  rule 383 

Same  —  comparison  —  English,  rule. 384 

Claim  to  an  ancient  peerage  —  signature  —  evidence ...    385 

Expert  —  comparison  —  rule  in  Massachusetts .   „ 386 

Libel — book  entries  —  comparison 387 

Comparison  on  cross-examination 388 

Comparison  —  rule  in  North  Carolina 389 

Same  —  rule  in  Kentucky 390 

Same  —  rule  in  New  York 391 

Experts  —  when  called  —  for  what  purpose 392 

Comparison  by  jury  —  papers  taken  to  jury  room 393 

Comparison  —  signature  —  photograph 394 

Information  —  libel  —  letters  —  evidence 395 

Comparison  of  signature 396 

Same  —  same  —  conflict  of  opinions 397 

Same  —  ejectment  —  proof  of  a  will  398 

Bill  of  exchange  —  letter  —  comparison 399 

Conflict  —  signature  —  bank  president  and  cashier 400 

Same  —  best  evidence  —  rule  in  New  York 401 

Obligor's  admission  —  conflict 402 

Deed  —  name  —  widow's  dower  in  land 403 

Name  in  a  deed  —  in  an  indictment .  404 

Will  —  codicil—  forgery  —  act  of  1854 405 

Witness  —  absent  —  denies  attestation 406 

Best  evidence  —  rule  —  nisi  prius  .     407 

Promissory  note  —  forgery  —  identity. .    .   408 

Testing  knowledge  of  witness  —  identity 409 

Identity  of  lease  —  signature  —  witness 410 

Shipbuilding  —  account  —  bill  of  sale  —  blanks  filled 411 

Bill  single  —  official  bond 412 

Note  —  indoreer  —  alleged  forgery 413 

Execution  of  deed  —  bond  —  rule  in  Pennsylvania 414 

Expert  testimony  —  questions  of  identity 415 

Evidence  —  comparison  —  new  witness 416 

Witness  to  signature  —  source  of  knowledge 417 

Signature  —  alleged  forgery  of  note 418 

Same  —  bank  checks  —  discounted 419 

Suit  by  freed  woman  —  two  notes. 420 

Proof  of  signature  —  admission  of  obligor 421 

Note  destroyed  —  receipt  —  signature 422 

Land  contract  —  receipt  —  forgery 423 

Money  loaned  —  usury  —  letters  —  signature 424 

Ejectment  —  marriage  —  lease  —  signature  425 

Comparison  —  English  and  American  rule  —  statute 426 


TABLE  OF  CONTENTS.  xv 

SEC. 

Same  —  statutes  —  construction  —  omission  —  comparison 427 

Same  —  documents  —  thirty  years  old 428 

Where  one  or  more  letters  were  seen  by  the  witness  —  rule  as  to 429 

CHAPTER  XL 

HANDWRITING  —  COMPARISON  —  Continued. 

Handwriting  —  comparison  —  civil  law  rule 430 

Same  —  same  —  common  law  rule  431 

Same  —  comparison  —  signature  of  attesting  witness 432 

Witness  —  voluntary  attestation 433 

Evidence  —  identification  of  handwriting 434 

Witnesses  to  a  will  —  proof  of  signature 435 

Proof  of  signature  —  rule  in  New  York 436 

Same  —  rule  in  Massachusetts 437 

Proof  of  confession  of  signature  to  a  note 438 

Proof  of  unregistered  deed 439 

Proof  of  signature  —  rule  in  New  Hampshire 440 

Disputed  writing —  rule  in  Alabama 441 

Same  —  English  statute 442 

Writing  —  witness  —  cashier  of  bank 443 

Draft —  proof  of  letters 444 

Maker  of  note  —  partial  payment  —  limitations 445 

Proof  —  handwriting  —  limited  knowledge 446 

Signature  —  identity  —  bill  of  exchange 447 

Alias  —  middle  names  —  addition  to  name 448 

Middle  letter  —  immaterial  variance 449 

Middle  letters  omitted  in  name  —  transposed 450 

Handwriting  —  bill  of  exchange  —  acceptance 451 

Same  —  suit  on  note  —  identity  of  maker 452 

Same  —  writing  —  subscribing  witness  —  rule  in  England 453 

Signature  on  receipt  —  proof  of  —  insufficient 454 

Attesting  witness  —  proving  his  own  signature 455 

Means  of  knowing  handwriting 456 

Handwriting  —  imitation  —  spelling  detected 457 

Confession  of  signature  —  American  rule 458 

Murder  —  confession  —  letters  —  writings 459 

Comparison  —  writing  known  to  the  court 460 

Same  —  rule  in  England 461 

Same  —  rule  in  Alabama 462 

Comparison  of  hands  — skill  of  witness 463 

Comparison  —  experts  —  bank  officers 464 

Passing  counterfeit  bank  bills  —  evidence 465 

Same  —  evidence  —  rule  in  South  Carolina 466 

Same  —  testimony  —  officers  of  the  bank 467 

Same  —  bill  of  exchange  —  bank  note 468 

Larceny  —  bank  notes  —  not  produced  on  trial ...     469 

Counterfeiting  —  evidence  —  competent  witnesses  ....    470 


xvi  TABLE  OF  CONTENTS. 

SEC. 

Witness  —  post-office  clerk  —  detective  of  forgeries 471 

Same  —  signature  —  warrant  of  attorney 472 

Libel  —  signature  —  expert  testimony  received 473 

Libel  —  newspapers  —  identity  —  type  —  handwriting 474 

Words  —  insurance  —  proof  of  policy 475 

Bond  attested  in  the  absence  of  obligor .  476 

Alteration  in  written  instrument  —  word 477 

Witness  —  knowledge  —  how  acquired 478 

Same  —  English  precedents 479 

CHAPTEK  XII. 

IDENTITY  OF  REAL  ESTATE. 

Real  estate  —  identity  —  boundaries  —  river 480 

Same  —  land  bounded  by  a  pond  —  boundary  of  pond 481 

Land  bounded  by  river  —  not  navigable 482 

Construction  of  deed  —  two  descriptions 483 

Two  descriptions  —  rule  in  New  Hampshire 484 

When  the  title  to  pass  —  true  and  false  descriptions 485 

Monument  —  distances  —  location  of  street 486 

Courses  and  distances  yield  to  monuments 487 

Construction  of  deed  —  identity  of  land 488 

Same  —  description  —  rule  in  California 489 

Same  —  descriptions  —  identity  —  construction  —  metes  and  bounds 490 

Land  bounded  by  stream  —  riparian  rights 491 

Same  —  cutting  ditch  for  mill-race 492 

Same  —  boundary  lines  —  objects  —  monuments ...  493 

Same  —  description  —  extrinsic  evidence , 494 

Same  —  description  —  rule  in  California 495 

Fire  insurance  —  identity  —  ejectment  —  description 496 

Description  —  when  sufficient  —  oral  testimony 497 

Deed  —  construction  of  description 498 

Description  —  reference  to  another  deed 499 

What  is  sufficient  identification 500 

Survey  —  difficulty  in  identifying  lands 501 

Description  of  land  —  plan  lost  —  identity  thereof 502 

Deed  fifty  years  old  —  identity  of  grantor 503 

Oral  testimony  —  latest  ambiguity 504 

Land  —  identity  of  boundaries  —  rule  in  Maine 505 

Same  —  rule  in  California 506 

Same  —  call  for  old  lines  —  for  the  jury 607 

Same  —  tax  deed  —  rule  in  Ohio  508 

game  —  land  sold  for  taxes  —  identification 509 

Same  —  patent  —  land  in  Virginia 510 

Same  —  Tennessee  lands  —  North  Carolina  laws 511 

Patent  —  lands  —  mistake — jurisdiction 512 

Deed  to  father  —  instead  of  son  —  rule  in  Vermont 513 

Deed  — alleged  forgery  —  rule  in  Vermont 514 


TABLE  OF  CONTENTS.  xvii 

SEC. 

Acknowledgment  —  what  complies  with  the  statute 515 

Same  —  same  —  rule  on  the  subject 516 

Same  —  certificate  —  when  fatally  defective  —  rule  in  Wisconsin 517 

Identity  of  land  —  mistake  in  numbers 518 

Description  of  land  —  identity  of  survey  —  rule  in  Ohio 519 

Description  of  land  —  identification  —  rule  in  Maine 520 

Description  of  land  —  identity  —  rule  in  Massachusetts 521 

Identity  of  land  sold  for  taxes 522 

Misdescription  of  land  —  decree  —  sale 523 

CHAPTER  XIII. 

IDENTIFICATION  OF  PERSONAL  PROPERTY 

Personal  property  —  chattel  mortgage 524 

Same  —  description  —  rule  in  Massachusetts 525 

Same  —  two  mortgages  on  one  horse 526 

Same  —  mortgage  on  two  mules  —  description 527 

Same  —  one  black  mule  —  rule  in  Alabama 528 

Description  of  mare  —  constructive  notice 529 

Variance  —  description  of  a  mule  —  horses  and  oxen 530 

Identity  of  cattle  —  age  —  rule  as  to  description 531 

Stock  of  goods  —  description  of 532 

Same  —  description  —  goods  —  groceries 533 

Same  —  misdescription  —  surplusage 534 

Same  —  portable  steam  engine 535 

Deed  in  trust  —  crop  of  cotton  —  description 536 

Indefinite  mortgage  —  mixed  logs  —  wagon 537 

Description  —  furniture  —  wheat  —  oxen 538 

Same  —  staves  —  stock  and  chattels 539 

Chattel  mortgage  —  goods  in  shop 540 

Larceny  —  cattle  —  marks  —  brands 541 

Same  —  hog  —  identity  of  hog  and  prisoner 542 

Larceny — treasury  notes  —  instructions  as  to  identity 543 

Receiving  stolen  goods  —  produced  in  court 544 

Robbery  —  money  and  watch  —  rule  in  England 545 

Burglary  —  carriage  heard  —  bad  spelling 546 

Same  — •  possession  of  horse  —  variance 547 

Robbery  —  identity  —  evidence  of  accomplices 548 

Larceny  —  cattle  —  brand  —  identity 549 

Larceny  —  cattle  and  horses  —  possession  — identity 550 

Identity  of  stolen  goods  and  box    551 

Same  —  stolen  cow — identity  of  accused 552 

Bank  robbery  —  identity  by  the  voice 553 

Confession  in  jail  —  identity  by  the  voice 554 

Burglary  —  evidence  of  identity  —  rule  in  Iowa. 555 

Identity  of  horse  thief  —  rule  in  Texas  —  yeast  can 556 

Larceny  by  millers  —  English  and  American 557 

C 


xviii  TABLE  OF  CONTENTS. 

SEC. 

Larceny  of  trunk  and  money  —  identity  of  money 558 

Money  —  metallic  —  identification  of  it  —  difficulty ...   559 

Same  —  currency  —  bank  notes  —  identity  of    560 

Same  —  indictment  for  uttering  counterfeit  coin 561 

Articles  —  goods  — how  identified 553 

Same  —  knowledge  or  opinion  —  reason 563 

Same  —  articles  —  appearance  —  marks 564 

Same  —  questions  of  identity  —  appearance  —  mistake 565 

Larceny  of  paper  money  —  identity  —  presumption „ 566 

Larceny  —  goods  —  mistaken  identity  of  goods 567 

Bank  notes  —  non-production  —  parol  testimony 568 

Same  —  goods  —  receiving  stolen  —  non-production 569 

Larceny  —  identity  of  goods  and  owner 570 

Same  —  extent  of  ownership  —  identity 571 

Indictment  —  larceny  —  description  —  name  of  owner 572 

Chattels  —  cards  in  court  —  inspection ....  573 

Dog  in  court  for  identification  —  premises 574 

Machine  for  inspection  —  and  a  dog , 575 

Chattels  in  court  for  identification  —  rule  in  England 576 

Inspection  —  portable  goods  in  court 577 

Comparison  of  articles  —  in  and  out  of  court. ... 578 

Damages — machinery  —  in  court  to  identify 579 

Belief  of  facts  —  according  to  evidence 580 


CHAPTER  XIV. 

VIEW  OF  PREMISES  BY  JURY. 

When  the  jury  may  view  the  premises 581 

Civil  cases  —  England  and  America 582 

Larceny  —  view  of  a  hog  —  error 583 

Burglary  —  jurors  viewing  the  premises 584 

Same  —  murder  —  rule  in  Arkansas  and  Georgia 585 

Same  —  burglary  —  rule  in  Louisiana 586 

Jurors  —  knowledge  acquired  by  inspection 587 

View  of  highway  —  rule  in  Massachusetts 588 

Same  —  view — railroad  bridge  —  wreck 589 

Photographic  views  —  rule  in  New  York 590 

Inspection  —  ancient  and  modern  rule 591 

View  of  oremises  —  civil  actions  —  ejectment 592 


CHAPTER  XV. 

COMPULSORY  PHYSICAL  EXAMINATION. 

Examination  of  persons  —  injured  parts  —  by  jury 593 

Same  —  different  rule  —  examination  —  when  necessary 594 

Same  —  railroad  employee  —  rule  in  Iowa 595 


TABLE  OF  CONTENTS.  xix 

SEC. 

Same  —  compulsory  examination  by  experts  596 

Same  —  compulsory  —  right  —  discretionary  power 597 

Same  —  action  against  street  railroad  company 598 

Same  —  turnpike  company  —  rule  in  Ohio 599 

Same  —  conflict  —  rule  in  Arkansas. . . 000 

Same  —  rule  in  Pennsylvania. . . 601 

Same  —  rule  in  Minnesota 602 

Same  —  rule  in  New  York 603 

Notice  to  produce  a  dog  in  court 604 

Compulsory  physical  examination 605 

Same  —  accused  not  to  convict  himself 606 

Murder  —  accused  examined  by  coroner 607 

Indictment  for  rape  —  identity  of  accused 608 

Tracks  in  corn-field  —  rule  in  North  Carolina 609 

Free  negro  carrying  arms  —  rule  in  North  Carolina 610 

Tracks  —  accused  compelled  to  make 61 1 

Prisoner's  testimony  used  against  him 612 

CHAPTER  XVI. 

MISTAKEN  IDENTITY. 

Debtor  —  bank  deposit  —  execution — identity 613 

Arrest  —  wrong  name  —  trespass 614 

Same  —  rule  in  England. 615 

False  personation  —  claiming  an  estate 616 

Casali  —  absent  thirty  years  —  returned 617 

Mistaken  identity  —  singular  cases  —  England  and  America 618 

Same — theft  —  mistaken  identity 619 

Mistaken  identity  —  Mrs.  McCaffrey's  case    620 

The  Govan  murder —  mistaken  identity 621 

Pentonville  prison  case  —  mistaken  identity  of  a  prisoner 622 

Mistaken  identity  in  ancient  history  , 623 

Same —  false  personation  in  ancient  history 624 

Uncle  executed  —  niece  returned  home 625 

Corpus  delicti  —  how  to  be  proved 626 

Dead  body  —  raised  — indictment  —  mistake 627 

Taking  dead  bodies  from  the  grave 628 

CHAPTER  XVII. 

MISCELLANEOUS. 

Res  adjudicata — judgment  —  identity  of  parties  and  subject-matter 629 

Action  on  contract  —  then  in  tort  —  rule  as  to. . . .  • 630 

Same  —  early  rule  in  New  York 631 

Same  —  lien  —  ship-builder  —  rule  in  Massachusetts 632 

Promissory  notes  —  identity  of  consideration 633 


XX 


TABLE  OF  CONTENTS. 


SEC. 

Record  —  proof  —  parol  —  general  issue 634 

Same —  parol  evidence  —  to  aid  judgment  —  identification 635 

Former  conviction  —  robbery  —  burglary 636 

Counterfeiting  —  former  judgment  —  identity 637 

Liability  for  a  misrepresentation  —  identity 638 

Patent  —  identity  —  infringement  —  rule  in  cases 639 

Same  —  rule  as  to  the  trial 640 

Same  —  patent  —  original  and  reissue ...  641 

Same  —  photographs  —  camera  —  invention 642 

Of  money  in  bank  —  equitable  owner. .    643 

Patents  —  identification  —  rule  on  the  subject 644 

Same  —  to  withdraw  metal  from  smelting  furnace 645 

Dying  declarations  —  identity  —  name 646 

Witness  —  hearing  —  seeing —  color-blindness 647 


TABLE  OF  CASES  CITED. 


PAGE. 

Aaron  v.  State 83 

Abbot  v.  Plumbe 280 

Abbott  v.  Abbott 12,  338,  347,  353 

Adamv.  Kerr 233,243,  304 

Adams  v.  Field 298 

Adams  v.  Frothingham 13,  338 

Ahitbol  v.  Benlditto 57,    83 

Ake  v.  Mason 341 

Albert!  v.  R.  Co 112 

Albright  v.  Corley 151 

Aldrich  v.  Pelham  ..  398 

Alexander  v.  Merry 222 

Alexander  v.  Mt.  Sterling 5,  122,  134 

Alexander  v.  State 16,  371 

Allen  v.  R.  Co 131 

Allen  v.  Taylor 81 

Allesbrook  v.  Roach 267,  277,  278,  303 

Allport  v.  Meek 261,  273 

Am.  Ex.  Co.  v.  Spellman 374 

Ammidownv.  Bank 335 

Anderson  v.  Hancock 343 

Anne  Lewis' case ...  279 

Anthony  v.  Stlnson 147 

Anthony  v.  Taylor 229 

Arbouin  v.  Willoughby 314 

Archer  v.  R.  Co Ill,  112 

Arnold  v.  Elmore 1£,  334 

Atchison  v.  M'Culloch 64,    68 

Attorney-General  v.  Fadden 403 

Aultman  v.  Timm 245,  246 

Autauga  Co.  v.  Davis 153 

Avery  v.  Butters 256 

Badger  v.  Titcomb 445 

Bain  v.  Mason 215 

Baker  v.  Blount 254,  256 

Baker  v.  Haines 275 

Bakery.  McFarland 32 

Baker  v.  Squier 290 

Balbec  v.  Donaldson 66,    70 

Bank  v.  Haldeman 275,  290 

Bank  v.  Hobbs    269 

Bank  v.  Rutland 210 

Bank  v.  Whitehtll . 210 

Bank  of  Com.  v.  Mudgett 285,  288 

Barbot's  case 3,  36,  157 


PAGE. 

Barkery.  Coleman 141,  153 

Barker  v.  Comins 133,  153 

Barnes  v.  Ingalls ..  4,  8,  105,  122,  132, 135,  149 

Barry.  Gratz 210 

Barren  v.  Thompson 229 

Batchelor  v.  Honeywood ....  327 

Bate  v.  Burr 75 

Bates  v.  Tymason 341 

Battin  v.  Taggert 451 

Baynard  v.  Eddlngs 13 

Bear  v,  Patterson ..  227 

Beavers  v.  State 7,  8,  92, 113,  167 

Beeson  v.  Patterson — 335 

Belden  v.  Seymour 341 

Bell  v.  Brewster 64,67,    68 

Bell  v.  Cowgell 258 

Bell  v.  McCawley 206,  207 

Bell  v.  Woodward 336 

Belton  v.  Fisher 51 

Benedict  v.  Gaylord 341 

Bennett  v.  Libhart 66,  66,  75,  79,  244 

Bennett  v.  Meehan 4,  122,  124,  149,  194 

Bennett  v.  Robinson 251 

Benson  v.  McFadden 129,  131 

Bentonv.  State.... 387,  395 

Berryhill  v.  Kirchner 320 

Berthon  v.  Loughman ..  139 

Biufleld  v.  State 452 

Bingham  v.  Dickie 47 

Birch  v.  Crewe 139 

Birtv.Barlow 215 

Bishop  v.  State 210,  320 

Blackburn  v.  Crawford 219,  220 

Blackman  v.  Johnson 129 

Blair  v.  Pelham  ...   8,102,  111,  274,  398 

Blake  v.  Doherty 335 

Blanchard  v.  Mann 137 

Bletch  v.  Johnson 81,  313 

Blochv.  Pfafl 341 

Bloxamv.  Elsee 256,  280 

Blunt  v.  Patten  449 

Blunt's  Lessee  v.  Smith 349 

Board  v.  Misenheimer 260 

Boardman  v.  Ins.  Co 393 

Boardman  v.  Lessees  of  Reed  and  Ford. .  348 
Bod  well  v.  Swan ..  126 


XX11 


TABLE  OF  CASES. 


PAGE. 

Bogardus  v.  Trinity  Church 298 

Bogart  v.  Brown 409 

Bogle,  etc.,  Co.  v.  Sullivant 262 

Rogue  v.  Bigelow 66,70,  244 

Boies  v.  McAllister 126 

Booker  v.  Bowles 258,  260 

Boren  v.  State 371 

Bostock  v.  State 395 

Bostou  v.  Richardson 341 

Bosworth  v.  Sturtevant 336 

Bott  v.  Burnell 11,  336 

Bouldiu  v.  State 88 

Bowman  v.  Sanborn 210,  260 

Boyd  v.  Wyley... 217 

Boyerv.  Norris 251,  252,  262 

Boyle  v.  Column 291 

Boynton  v.  Rees 256 

Brainard  v.  Stilphin 50 

Braithwaite  v.  Watts 228 

Brennan  v.  People 151 

Breton  v.  Cope 283 

Briggs  v.  Morgan 401 

Brigh am  v.  Peters 264,  309 

Brill  v.  Flagler 136 

Brink  v.  Ins.  Co 4,123,149,  194 

Bristol  Co.  Bank  v.  Keary 137 

Brobston  v.  Cahill 320 

Bromage  v.  Rice 273,302,303 

Brookbard  v.  Woodley  267 

Brookes  v.  Tichborne 3,  271,  273,  274 

Brotherline  v.  Hammond 66,  354 

Brown  v.  Anderson 240 

Brown  v.  Brown 273,  401 

Brown  v.  Com 4,  26,  167,  373 

Brown  v.  Corey  138 

Brown  v.  Hicks 215 

Brown  v.  H  tiger 340 

Brown  v.  Lincoln 322 

Brown  v.Metz 60,65,66,    70 

Brown  v.  Parish 341 

Brown  v.  R.  Co 137 

Brown  v.  Wood    210 

Brown  v.  Woodman 273 

Browne  v.  Kennedy 12,  334 

Bruce  v.  Crews 290 

Brush  v.  Taggart 256 

Bryan  v.  Faucett  16,363 

Bryant  v.  Stllwell 408 

Buchan  v.  Sumner 228 

Buck  v.  Squlers 835 

Buhler  v.  State 445 

Bull  v.  Franklin 47 

Bullock  v.  Williams 864 

Burdlck  v.  Hunt 821 

Burdltt  v.  Hunt 365 

Burford  v.  McCue 66,76,    79 

Burghartv.  Angersteln 215 

Burgln  v.  Chenault 208 

Burlen  v.  Shannon 443 

Burling  v.Patterson 206,  209 


PAGE. 

Burnham  v.  Ayer  290 

Burr  v.  Harper 275 

Burress'  case 320 

Burtv.  Walker     236,256,  307 

Bush  v.  Fox 448 

Cabot  Bank  v.  Russell 263 

Call  v.  Dunning 233,  280 

Camoys  Peerage  case 8,  106,  107 

Campbell  v.  People  ... 165 

Campbell  v.  State 95,  155,  446 

Campbell  v.  Wallace 256 

Canal  Trustees  v.  Haven 340 

Carey  v.Pitt .139,  257,  264,  328 

Carleton  v.  Townsend ..    34 

Carpenter  v.  Ely 79,    80 

Carpenter  v.  State 95 

Carpenter  v.  Williams 349 

Carroll  v.  Norwood 341 

Carroll  v.  State 387 

Carter  v.  Chaudron 206,  208 

Carter  v.  James 441 

Garth  age  Turnpike  v.  Andrews 129 

Gary  v.  Campbell 256 

Casey  v.  R.  Co 390 

Cassiday  v.  Conway 347 

Gates  v.  Loftus 60,65,  66,    70 

Catov.  Hutson 222 

Cavendish  v.  Town  of  Troy 134 

Chadsey  v.  McCreery 58,  314 

Chaffee  v.  Taylor 290 

Chamberlain  v.  Blodgett 85 

Chamblee  v.  Tarbox .33,  61,  65,    70 

Chance  v.R.Co 320 

Chandler  v.  Le  Barren 267 

Chandler  v.  Shehan 69 

Chaurand  v.  Angerstein 139 

Chelsea  Water-Works  v.  Cowper 206 

Child  v.  Starr 340 

Childress  v.  Cutter 220 

Chlniquy  v.  Cath.  Bish.  Chicago 51 

Church  v.  Milwaukee  ...102,111,274,398,  400 

Cicely  v.  State 6,  195 

City  of  Parsons  v.  Lindsay 128 

Claremont  v.  Carlton 335 

Clarkv.Capp  384 

Clark  v.  Owens 206 

Clark  v.  Pearson 2,64,    65 

Clark  v.  Sanderson.     .  282,  234,  251,  252,  253 
254,  258,  262,  346 

Clark  v.  Trinity  Church 215 

Clark  v.  Wallace 257,  264 

Clarke  v.  Courtney 284,  262,  311,  312 

Clayton  v  R.  Co 393 

Cleaveland  v.  State 84 

Clements  v.  State 97 

Clermont  v.  Tullldge 266,  276,  295 

Clifford  v.  Richardson 6,  135 

Clinton  v.  Howard 122,  140,  149 

Clough  v.  R.  Co 78; 


TABLE  OF  CASES. 


.  xxni 


PAGE. 

Chile  v.  Emmerich 212 

Clymer  v.  Littler 305 

Cobb  v.  State 99 

Cobbett  v.  Kllminster 285 

Cochran  v.  Butterfleld 291 

Codyv.Conly 290 

Coffman  v.  Reeves 129 

Coleev.  State 5,  133,  157 

Coleman's  Appeal 445 

Collier  v.  Nokes 62,    64 

Collins  v.Lavelle 335,  361 

Collins  v.  Lemastera 239 

Com.      Brigham 54 

Com.      Byce 96 

Com.      Carey 268,279,290,  324 

Com.      Coe 102,  598 

Coin.      Cooper 452 

Com.       Costello 2,43,64,  66,  244 

Com.      Cuniiinghan 42,    96 

Com.      Davis 446 

Com.      Donovan 53 

Com.      Dorsey 143,  153,  157,  194 

Com.      Dowdican 5,  122 

Com.    .Eastman 275 

Com.      Easton 309 

Com.      Foster 244 

Com.      Hall 49 

Com.      Hartnett 298 

Com.      Hayes 9,    21 

Com.      Hills...  382 

Com.    .Hunt .  183 

Com.      James 18,  375 

Com.       Jennings 54 

Com.      Kinlson 324 

Com.      Kinney 445 

Com.       Knapp 392 

Com.       Malone 122,149 

Com.      Montgomery 17,  380 

Com.    .Owens 131,157 

Com.     .  Perkins 48,  314 

Com.    .Piper 185 

Com.    .  Pope 95, 125, 141, 153, 157, 194,  223 

Com.      Reardon  7,    43 

Com.      Scott 25,  373 

Com.       Smith 260,279,290 

Com.    .Snow 41 

Com.      Sturti  vant 129, 133, 153, 193,  194 

Com.      Tenney 445 

Com.      Tolliver 42 

Com.      Warren 54 

Com.      Webster.  .  .10, 18, 157, 162, 170, 176,  178 

181,  387,  393 

Com.      Whitman 42 

Com.      Williams     8,22,146 

Comrs.  v.  Kempshall 12,  834 

Condict  v.  Stevens 256 

'Connally  v.  Spragins 14,  357,  358 

Conner  v.  State 371 

Conrad  v.  Farrow  262,255,  294 

Cookv.  Totton 206 


PAGE. 

Cooke  v.  Lalance,  etc.  Co 385 

Cookev.  Woodrow 251,252,304,  307 

Cooper  v.  Marsden — 307 

Cooper  v.  Randall 138 

Cooper  v .  State 5, 125, 135, 142, 149,  152 

157, 189,  194 

Corfield  v.  Parsons 58 

Cotton  v.  State 183 

Cottrill  v.  Myrick 5,  125 

Coulson  v.  Walton    25S 

Cowan  v.  Beall 210 

Cowley  v.  People 8,108,111,  112 

Coxv.Cock 33 

Cozzens  v.  Higgins...l01, 102,  111,  112,  274,  398 

Crane  v.  Marshall 210 

Crane  v.  Morris ...252 

Cresswell  v.  Jackson 282 

Crist  v.  State 272 

Crocker  v.  State 446 

Crookv.  State 375 

Crosby  v.  Percy 135,  236,  239,  252,  255 

Cross  v.  Martin 65,  217 

Crosswell  v.  Allis 364 

Culver  v.  Dwight. 129,153 

Culver  v.  Marks 55 

Cundy  v.  Lindsay 73 

Cunliffe  v.  Sefton 235,  250,  255,  280,  304 

Cunningham  v.  Bank 5, 122, 135,  291,  292 

Currier  v.  R.  Co 4,122,134,  153 

Curry  v.  State 17.62,372 

Curtis  v.  Chicago  122 

Curtis  v.  Marrs 48 

Curtis  v.  R.  Co 5,  136 

Cutting  v.  Conklin 48 

Da  Costa  v.  Pym 267 

Daly  v.  Maguire 112,  274 

Dalzell  v.  Davenport 138 

Dan  v.  Brown 242 

Davis  v.  People  162,163,  181 

Davis  v.  Prevost 256 

Davis  v.  Rainsford 11,  337 

Davisv.  State 9,  21 

Davisonv.  Bloomer 258 

Dean  v.  Com 98 

De  la  Motte's  case 264,  329 

Delanoy  v.  Cannon 419 

Dennis  v.  Brewster 66 

De  Rols  v.  Guerre 427 

Devaubagh  v.  Devanbagh 401 

Dickenson  v.  Inhabitants 137 

Dickinson  v.  Prentice 266 

Dillon  v.  Rogers 47,    61 

Diltsv.  Kiuney 81 

Dishazerv.  Maitland 210 

Dodge  v.  Bank 41,287 

Doe  v.  Barnes 215 

Doe  v.  Bray 215 

Doe  v.  Campbell 212 

Doe  v   Davies 331 


XXIV 


TABLE  or  CASES. 


PAGE. 

Doev.  Deakln 206,  207 

Doe  v.  Duruford 248 

Doe  v.  Lyne  332 

Doev.  Miller 83 

Doev.  Newton 246,267,273,  277 

Doe  v.  Owen 211 

Doev.  Phillips 212 

Doe  v.Roe 206,  207 

Doev.  Ross 312 

Doe  v.  Samples 206 

Doe  v.  Suckermore. .  .246,  260,  267,  271,  272,  290 
297, 299,  318,  332 

Doev.  Tarver 273 

Doe  v.  Wilson 259 

Doev.Wolley 206,207,  211 

Doll  v.  Feller .  342 

Douglas  v.  Dak  in 64,  66,  68,  70,  246 

Douglass  v.  Sanderson 304 

Drakev.  State 100 

Draper  v.  Perkins 364 

Drew  v.  Drew 336 

Dring  v.  Dickenson 419 

Dubois  v.  Baker 285,  288,  297 

Dudley  v.  Sunnier 258,307 

Duffyv.  People 413 

Dukev.  Strickland 358,  364 

Dukesv.  State 98 

Dunbarv.  Marden 262,  307 

Dunbar  v.  R.  Co 73,  74 

Duncan  v.  Beard 251,257,263 

Duokleev.  R.  Co 338 

Dupoysterv.  Gaganl 213 

Durrell  v.  Bederley 139 

Durst  v.  Masters 112 

Dutch  v.  Boyd 55 

Dwight  v.  Comrs 137,  143 

Eagleton  v.  Kingston 260,  272 

Earle  v.  Picken 261,280,  282 

Early  v.  State 7,94,  272 

Easton  v.  Bratton .      445 

Eastwood  v.  People 387 

Ebberle  v.  Mayer   358,  366 

Eborn  v.  Zlmpelman  112,114,  274 

Eddy  v.  Caldwell 357 

Edelen  v.  Gough 260 

Kdmundson  v.  State 81 

Elliott  v.  Van  Baren 5,  129 

Ellis  v.  Martin 363 

Ellis  v.  People 288 

Ellsworth  v.  Moore 66,79,  217 

Emory  v.  Goodwin 263 

Empire  Co.  v.  Stuart 290 

Erd  v.  R.  Co  138 

Ereklne  v.  Davis  49,    81 

Evans  v.  Curtis 265 

Evans  v.  People ]29 

Evnnsvllle  v.  Page 337 

Eyerman  v.  Sheehan 151 


Fanning  v.  Lent 


n 


PAGE. 

Farmers' Bank  v. King ...66,  450 

Farmers  Bank  v.  Whitehill 257 

Farnsworth  v.  Briggs. , 251,  258,  262 

Farr  v.  Swan    215 

Farwellv.  Fox 359 

Fellv.  Young 206,  207 

Ferguson  v.  Stafford 138 

Fetherly  v.  Waggoner 207,  211 

Finch  v.  Gridley 275 

Finch  v.  State .  ..  97,  99 

Fiulay  v.  Cook 336 

Fiuley  v.  Hanbert 44ft 

First  Nat.  Bank  v.  Robert 210 

Fisher  v.  Com 445 

Fitzgerald  v.  Elsee 262,  283 

Fitzgerald  v.  Hayward 151 

Fitzhugh  v.  Croghan 258 

Fitzwalter  Peerage  case 269,  331 

Flagg  v.  Thurston 341 

Fletcher  v.  Conly 68 

Fletcher  v.  Powers 362 

Flournoy  v.  Warden 97,  221 

Fogg  v.Dennls 275 

Folkes  v.  Chadd 139 

Foote  v.  Cobb 253 

Fordyce  v.  Neal 14,  359 

Foster  v.  People 18,  372 

Foster  v.  The  Richard  Busteed 443 

Foster's  Will,  Matter  of 8,  113 

Fowlerv.Hunt 364 

Foxv.Reil 261 

Francia's  case 264,329 

Francisco  v.  State 445 

Franklin  v.  Talmadge 49,  81,    314 

Freeman  v.  Loftis 34 

French  v.  Snyder 138 

Fritzv.State 445 

Frost  v.  Angler 337 

Frost  v.  Beekman 364 

Frost  v.  Spaulding 11,  337 

Fryer  v.  Gathercole 30,  123 

Fuller  v.  Nelson 230 

Funcke  v.  Ins.Co 116 

Funston  v.  R.  Co 5,  131 

Furber  v.  Billiard 267,  264 

Gajf leton  v.  Kingston 297 

Gardiner  v.  People 95 

Garrells  v.  Alexander  260,  264,  297,  303 

Garrison  v.  People    68 

Garvln  v.  Carroll 31 

Garwood  v.  Hastings 342 

Gavlgan  v.  State 8 

Gavlt  v.  Chambers 340 

George  v.Surrey 260,264,  307 

Gilbert  v.  Simpson 288 

Giles  v.  Cornfoot 223 

Gill  v.  Wells 448 

Gllllam  v.  Perklnson 261,  252,  262 

Oilman  v.  Sheets 281,  352 


TABLE  OF  CASES. 


xxv 


PAGE. 

Gitt  v.  Watson.. 64,  66,  70,  74,  97,  221,  245,  281 

Glassv.  Gilbert 354 

Glover  v.  Mayor 

Goff  v.  Pope 363 

Goldsmith  v.  Bane 257,  275 

Golightly  v.  Jellicoe .    445 

Goodell  v.  Hibbard 64,  221,  223,  245 

Goodrich  v.  Davis 22 

Goodright  v.  Moss 216 

Goodtitle  v.  Braham 268 

Goodwin  v.  State  129,  157 

Goodyear  v.  Vosburgh 210,  272,  288,  320 

Gordon  v.  Austin 47 

Gordon  v.  Price 290 

Gough  v.  Cecil 243,262 

Gould  v.Jones    257,273,  279 

Gouldingv.  Swett 15,  357 

Gove  v.  White 334 

Governor  v.  Cowper 261 

Graves  v.  Colwell 66,  75,  245 

Graves  v.  People 52 

Greaves  v.  Hunter 266,272,275,  290 

Green  v.  Chelsea 210 

Green  v.  Chicago 138,148 

Greenfield  v.  People 133,  157 

Greening  v.  Keel 32 

Greenshields  v.  Crawford 64,  66,  68,    75 

315,  316 

Greenwood  v.  State 446 

Gregory  v.  Baugh 251,252,  262 

Grellier  v.  Neale 262 

Gresham  v.  Walker 67,    83 

Griffith  v.  Williams.  .257, 267,  273, 278,  303,  323 

Griffits  v.  Ivery 269,312,320 

Grindle  v.  Stone 64,  66,  68,    71 

Grubbs  v.  M'Clatcby 256 

Grumm  v.  Hubbard 80 

Gurney  v.  Langlands 139,  328 

Hackett  v.  R.  Co 132,  143 

Haile  v.  Palmer 215 

Haley  v.  Amestoy 342 

Hall  v.  Gittings 210 

Hallv.Huse 263 

Hallv.Luther 242 

Hall  v.  Phelps 306,  307 

Hallahan  v.  R.  Co 5,  124,  149,  223 

Hamber  v.  Roberts. .  .2,  58,  64,  68,  70,  245,  246 

Hambyv.  State 10,  170 

Hamilton's  Appeal 227 

Hamilton  v.  Marsden. . .  .252,  258,  262,  304,  346 

Hamilton  v.  M'Guire 258 

Hamilton  v.  State 445 

Hamm  v.  Romine 129 

Hammond's  case    .  257,  264,  267,  268,  273,  323 

Hammond  v.  Ridgely 334 

Hammond  v.  Varian 260,  286 

Hamner  v.  Smith 12,335,361 

Hamsher  v.  Kline 64,245,  263 

Hance's  Appeal — 228 

D 


PAGE. 

Handy  v.State 251,  252,  262 

Haney  v.  State 47,  81,  369 

Hanley  v.  Gandy 210 

Hannel  v.  Smith 347,348 

Hanover  Water  Co.  v.  Ashland  Co 138 

Hardin  v.  Kretsinger 381 

Hardingv.  Coburn 16,  357,  365 

Harrington  v.  Fry. 75 

Harris  v.  Eubanks 211 

Harrisv.Hull 337 

Harris  v.  Kennedy 14,  360 

Harris  v.  State 165 

Harrison's  case 23,  373 

Harrison  v.  Harrison 401 

Harrison  v.  State — 88 

Hart  v.State 7,    93 

Hartv.Yunt 256 

Hartung  v.  People 260 

Hastead  v.  Searle 336 

Hatch  v.  Dwight 12,334,  340 

Hatch  v.  Ins.  Co 342 

Hatcher  v.  Rocheleau 66,  281 

Hatfleld  v.  R.  Co 408 

Hathaway  v.  Power 336 

Hautz  v.  Rough 258 

Havens  v.  Dale 335 

Hawkins  v.  City 137 

Hawkins  v.  State   445 

Haynes  v.  Rutter 249 

Hazleton  v.  Bank 210,  320 

Hazzard  v.  Vickery  320 

Heacock  v.  Lubukee - 59,  65,    66 

Head  v.  Hargrave  . . 147 

Headley  v.  Shaw 50 

Healy  v.  Moul 346 

Hedgev.Sims 335 

Heil  &  Lauer's  Appeal 226 

Hempstead  v.  Bird 253 

Hendricks  v.  State Si 

Hennell  v.  Lyon 31 

Henry  v.  R.  Co 138 

Henry  v.  State 53,57,  281 

Hermann  v.  Butler 52 

Herrick  v.  Swomley 320 

Hessv.  State 260,278 

Hetheringtou  v.  Clark 346 

Heughv.  R.  Co 73 

Hewlettv.  Cock 210 

Hibbard  v.  Hurlburt  336 

Hlbberd  v.  Smith 230 

Hickman  v.  Gillum 33 

Hicksv.  Davis .  347 

Hicksv.  Pearson 275 

Hill  v.  Mason 347 

Hill  v.  Phillips 238,256 

Hillv.  State 368 

Htindemarsh's  case 438 

Hirshfleld  v.  State  445 

Hodnett  v.  Forman 240 

Holies  v.  TJ.  8 445 


XXVI 


TABLE  OF  CASES. 


PAGE. 

Holland  v.  Fox 387 

Hollenbeck  v .  Rowley 102,  111,  398,  399 

Hollowayv.  Galliac 343 

Holloway  v.  Lawrence.... 251,252,  294 

Holman  v.  Walden 50 

Holmesv.  Pontin 307 

Holsteln  v.  Adams 224 

Holtv.  State 445 

Holten  v.  Board,  etc 5,  129 

Holten  v.  Comrs 138 

Holtonv.  Comrs.,  etc 130 

Homer  v.  Cilley 210 

Homer  v.  Wallls.  ...248,252,253,257,263,267 

268,  298 

Honeywood  v.  Peacock. . 243 

Hopkins  v.  De  Graffenreld 263,  304 

Hopkins  v.  Megquire 260,318 

Hopperv.  Com 166 

Hosmer  v.  Warner 137 

Houk  v.  Barthold 65 

Housev.  Ford 129 

Howard  v.  Patrick 320 

Howe  v.  Bass.. 337,341 

Howland  Will  case....    118 

Hoytv.  Davis 64 

Hoytv.  Stuart 288 

Hubbardv.  Lees 220 

Hubby  v.  State 94,  95 

Hubert  v.  Bartlett 340 

Hubley  v.  Vanhorne 268 

Huet  v.  Le  Mesurier 215 

Huffman  v.  Com 81 

Hughes  v.  Rogers 302,  303 

'Hullv.  Fuller 11,  336 

Huntv.  Lawless 288 

Huntv.  Shackleford. 363 

Hunt  v.  Stewart 66 

Hunter  v.  Allen 385 

Hunterv.  Glenn ...     253 

Hunter  v.  State 183 

Hutchinsou  v.  Allcock. 266 

Hutton  v.  Arnett 362 

Hyam  v.  Edwards 220 

H yde  Park  v.  Dunham  148 

Hynes  v.  McDermott 112,  247,288,  297 

Ihtngerv  State 45 

Indianapolis  v .  Huffer 122,  129,  141 

Ingraham  v.  Wilkinson 340 

Ingramv   Hall 247,254,  259 

Innls  v.  The  Senator 145 

Irlshv.  Smith 129 

Irvlngv.  Irwing 262,  294 

Irwlnv.  Towne 343 

Inaacs  v.  Wiley 81,  314 

Jackson  v.  Barringer 841 

Jackion  v.  Blanshan 206,  211 

Jackson  v.  Roneham 68,  220 

Jackson  v.  Brooks 209 

Jackson  v.  Burton 868,  307 


PAGE. 

Jackson  v.  Chamberlain 254,  256,  258 

Jackson  v.  Christman 68,  69,  207,  253,  258 

Jackson  v.  Clark 336 

Jackson  v.  Cody 66,241,254,  255,  258 

Jackson  v.  Cooley 216 

Jackson  v.  Davis 206,207 

Jackson  v.  Gager 241,  253,  254,  258 

Jackson  v.  Goes 66 

Jackson  v.  King 65,68,216,  220 

Jackson  v.  Laroway 210 

Jackson  v.  Le  Grange 262,  305 

Jackson  v.  Lewis 258 

Jackson  v.  Marsh 336 

Jackson  v.  Moore 11,  336 

Jackson  v.  Murray 257 

Jackson  v.  Phillips 290 

Jackson  v.  Root 254,258 

Jackson  v.  Schoonmaker 261 

Jackson  v.  State 445 

Jackson  v.  Van  Dusen 290 

Jackson  v.  Waldron 233,  251,  252,258,  262 

305,.  307 

Jacobs  v.  Davis.. 383 

Jamesv.  State 84 

James  Holland's  case 279 

Jarvis  v.  Furman 137 

Jeans  v.  Wheedon 273 

Jefferson  Ins.  Co.  v.  Cotheal 146,  152 

Jennings,  Ex  parte 340 

Jennings' Lessee  v.  Wood 364 

Johnson  v.  Daverne 257,290,  317 

Johnson  v.  Ellison 71 

Johnson  v.  Mason 280 

Johnson  v.  Nevill 363 

Johnson  v.  State 16,  367 

Johnson  v.  Thompson 129,  130 

Jones  v.  Blouut 252 

Jonesv.  Cooprlder 254,258,260 

Jones  v.  Jones..  66,315,  316 

Jonesv.  Macquillln 49 

Jonesv.  Mason  ...    263 

Jones  v.  Parker 66,  244 

Jonesv.  State 320 

Jones  v.  Tarleton 8 

Jones  v.  Tumour '. 65 

Jonesv.  White 5,  127 

Jordan  v.  Bank 367 

Jowettv.  Charnock 314 

Jumpertz  v.  People 320 

Jupitz  v.  People 18,369,387 

Karmuller  v.  Krotz 338 

Kayv.  Brookman 237,  256,  304 

Kearney  v.  Farrell 4,122,  194 

Keeller  v.  State.  : 47 

Keene  v.  Meade 81 

Keith  v.  Lothrop 248,260,  267,  269 

Keith  v.  Sturges 53 

Kellogg  v.  Anderson 360 

Kelly  v.  Calhoun 351 


TABLE  OF  CASES. 


xxvu 


PAGE. 

Kelly  v.  Reid 364 

Kelly  v.  State 16,  367 

Kelly  v.  Valney 66,    74 

Keniston  v.  Rowe 38,40,    41 

Kernlnv.Hill 320 

Keyesv.  Grant 451 

Kimball  v.  Davis 243 

Kimball  v.  Semple 337 

Ktncaldv.  Howe 245 

Kingv.  Donahue 25,246,263,  373 

King  v.  Hutchina 81 

Kingv.  King 340 

Kingv.  Little 206,  336 

Kingv.  R.Oo 389 

Kingv.  State 7,    93 

Kingston  v.  Lesley 220 

Kinuey  v.  Plynn 66,    68 

Kirkv.  Suttle 47 

Knightv.  Wilder 12,  340 

Koontzv.  State 61,    81 

Krebsv.  State. 81 

Kreitz  v.  Behrensmeyer 79 

La  Beau  v.  People 161 

Lafferty  v.  Byers. 347 

Lambev.  Reaston 336 

Landersv.  Bolton , 246 

Lane  v.  Thompson 338 

Largev.  Penn 341 

Laswell  v    Robbins 138 

Latimer  v.  Alexander 412 

Lau  v.  Mumma. 206 

Lautermilch  v.  Kneagy 258 

Lawrence  v .  Evarts 357 

Lawrence  v.  Hunt 443 

Layer's  case 264 

Leathers  v.  Salvor  Wrecking  Co 8,  115 

LeBarronv.  Le  Barren 401 

Lemon  v.  Dean 262 

Leonard  v.  Allen 22,  153 

Leopold  v.  Van  Kirk 136 

Lepiot  v.  Browne    75,  245 

Lewis  v.  Hartley 18,385,  409 

Lewis  v.Sapio 260,  264 

Linev.  Taylor 18,386 

Linsdayv.  People.... 6,  11,  133,  157,  174,  184 

Little  v.  Beazley 210,308 

Little  v.  Downing 206, 

Livingston  v.  Kettelle 350 

Locke  v.  R.  Co 399 

Lodge  v.  Barnett 337 

Lodge  v.  Phipher :...268,  290,  295 

Lord  Ferrers  v.  Shirty 279 

Lord  Preston's  case 32J 

Lorton  v.  State 445 

Louden  v.  Wai  pole 24£ 

Loydv.  R.  Co   403,404,406 

Lucov.  U.S 118 

Luke  v.  CalhounCo 

Lumber  Co.  v.  Rodgere 448 


PAGE. 

,und  v.  Tyngsborough... 122 

,uah  v.  Druse 240,  243,  336 

lymanv.  Loomis 11,  336 

.yman  v.  Philadelphia 354 

Lynesv.  State 47 

Liyon's  case  329 

,yonv.  Lyman 264,  268,  290,  298,  329 

Lytle  v.  People 48 

Macferson  v.  Thoytes 267,  277 

M  agee  v .  Osborn 260 

Makepeace  v.  Bancroft 335 

Mann's  Appeal 227 

Manuf.  Co.  v.  Butler 446 

Marcyv.  Barnes 108,247,  274,398,  400 

M'Arthurv.  Browder 349 

Martinv.  Com 326 

Mason  v.  White 11,  336 

Massie's  Heirs  v.  Long 347 

Matlockv.  Glover  320 

Maugham  v.  Hubbard —  239 

Maxwell  v.  Chapman 218,  220 

Mayv.State 279 

McAllister  v.  McAllister 272 

McCann  v.  State. ...10,  152,  153,  155,  176,  186 

198,  203 

McCord  v.  Cooper 358,  364 

M'Corkle  v.  Binns 329 

M'Cormickv.  M'Murtrie 208 

M'Crawv.  Gentry 803 

McCulloch  v.  State 185 

McCullough  v.  Wainright 334 

McDouelv.  State 7,    92 

McDufflev.  Clark 281 

M'Gennis  v.  Allison 252,  255,  262,  346 

McKay  v.  Speak 314 

McKee  v.  Nelson 153,  154 

McKeone  v.  Barnes...  291,  309 

McKinney  v.  McKinney  ... 353 

McKnight  v.  State 78 

McKonkey  v.  Gaylord 122 

McMillan  v.  State 61,    81 

McMinnv.  Whelan 66,  75,  79,  246 

McQuigan  v.  R.  Co 411 

McReynolds  v.  Longenberger 206,  208 

Mead  v.  Young 244 

Mehaffy's  Appeal 227 

Mendes  da  Costa  v.  Pym — 295 

Mendumv.  Com 36,  155,  189 

Messner  v.  People 9,    22 

Metz  v.  Bank 228 

Meyers  v.  Farquharson 344 

Middleton  v.  Sandford 243 

Milesv.  Loomis 297 

Miller  v.  Butler 22 

Miller  v.Mann 334 

Miller  v.  People 81,313 

Miller's  Estate 251.  252,  262,  294 

Mills  v.  Kansas  Lumber  Co  361 

Millsv.Twist 235,  236,  255,  256 


xx  vm 


TABLE  OF  CASES. 


PAGE. 

Mills  v.  Winter 129 

Milward  v.  Temple 233,  243 

Mitchell  v.  Johnson 243 

Mitchum  v.  State .  182 

M'Kean  v.  M'lvor 73 

M'Kee  v.  Nelson 125,142,  194 

M'Kenirev.  Fraser 306 

M'Kinney  v.    Leacock 256 

Moody  v.  Rowell 263,  267,  268, 270,  298,  323 

Mooers  v   Bunker 65,    66 

Moog  v.  Benedicks  &  Co 60 

Moore  v.  Anderson 84 

Moore  v.  Com 326 

Moore  v.  State 445 

Moore  v.  U.  S 210 

Morewood  v.  Wood 273,  299 

Morgan  v.  Morgan 254,  255 

Morgan  v.  Reading 12,  334 

Morris  v.  Harmer 215 

Morrison  v.  Keen 12,  334 

Morrisseyv.  Ferry  Co 66,220 

Morse  v.  State 122,  134 

Mosev.  State 97 

Mosley  v.   Massey 11,  336 

Moss  v.  Anderson 66,68,71,300,  303 

MOBS  v.  Shear 345 

Mottv.  Doughty 243,  258 

M'Pherson  v.  Foster ...  337 

M'Pherson  v.  Rathbone .  ...251,252,253,  262 

Mulford  v.  LeFranc 339 

Mulhadov.  R.  Co 167,  408 

Muller  v.  Boone 229 

Muller  v.  Landa 12,340 

Mullery  v.  Hamilton 69,217 

Murdockv.  Stunner 147,  143 

Murieta  v.  Wolfhagen 64,66,    68 

Murphy's  case. 279 

Murphy  v.  Hagerman 309 

Murphyv.  People 184 

Musquez  v.  State 82 

Myer  v.  Fegaly 225 

Myers  v.  Ladd    335 

Myers  v.  Toscan ..210,257,272 

Nashv.  Hunt 133,  153 

Nave  v.  Hadley 55 

Nelson  v.  Whlttall ...68,70,243,  304 

Newell  v.  Newell    401 

Nicholas  v.  Lausdali 63 

Nichols  v.  Alsop 286 

Nicholson  v.    Karpe    16,364 

Nleman  v.  Ward 208 

Nlller  v.Johnson 320 

Norman  v.  Wells 129,138,  286 

Northrop  v.  Hale 3ft 

Northropv.  Wright 206,  208 

Northrup  v.  Jackson 256 

Norton  v.  Huxley 442 

Norton  v .  Moore 127 

Norton  v.  Seton  ....  . .  401 


Nunes  v.  Perry. 


PAGE. 
..    309 


Oakley  v.  Giles 419 

Old  Dom.  Or.  Co.  v.  Clarke 227 

Outlaw  v.  Hurdle 41 

Owen  Y.  Bartholomew 335 

Owen  v.  Boyle 215 

Packet  Co.  v.  Sickles 445 

Padgett  v.  Lawrence 245 

Pagev.Homans 290,318 

Page  v.  Mann    64,243 

Page  v.  Wells   133 

Parchman  v.  State 34 

Parker  v .  Bent 314 

Parker  v.  Boston,  etc 129 

Parker  v.  Enslow  403 

Parker  v.  Steamboat  Co    163 

Parker  v.  Thompson 445 

Parkins  v.  Harkshaw 243 

Partridge  v.  White 16,  361 

Patent  Type  Co.  v.  Harrison 387 

Patterson  v.  Boston 147 

Patterson  v.  Tucker 294 

Patton  v.  Goldsborough 345 

Paynev.  Craft 208 

Payne  v.  Lowell 398 

Peake  v.  R.  Co...     58,  71,  314 

Pelletreau  v.  Jackson 251,  252,  253,  262 

Penrod  v.  People 182 

People  v.  Badger 279 

People  v.  Bennett 201,  203 

People  v.  Buddensieck 112 

People  v.  Caryl 279 

People  v.  Collins  72 

Peoplev.Cook 71 

People  v.  Eastwood.  . .     .133, 141, 151, 153,  157 

People  v.  Ferguson 80 

People  v.  Gonzalez 95,  161 

People  v.  Higgins 80 

People  v.  Hoag 4,  427 

People  v.  Holbrook 381 

People  v.  How — 158 

People  v.  May  worm 79 

People  v.  McCoy 409 

People  v.  McCurdy —  8& 

People  v.  Mount 67 

People  v.  Muller 400* 

People  v.  Palmer 9,157,  160 

People  v.  Platt 12,334 

People  v.  Rolfe 5,  64,  126,  149,  157,  245 

People  v.  Rowland 253 

People  v.  Royland 256 

People  v.  Ruloff 201 

People  v.  Spooner 272 

People  v.  Williams  166 

People  v.  Wilson 173,194,201,  438 

Pepper  v.  Barnett 260 

Perkins  v.  Parker 445 

Person  v.  Wright 364 


TABLE  OF  CASES. 


xxix 


PAGE 

Pettibone  v.  Smith 138 

Pettis  v.  Kellogg 16,  365 

Peyton  v.  Ayres  12,335,  361 

Phila.  v.  Miller 354 

Phillips  v.  Berick 445 

Phipps  v.  Parker 330 

Pick  v.  Rubicon,  etc.,  Co. .  393 

Pickering  v.  Pulsifer 48 

Pierce  v.  Northey 210,  330 

I'igott  v.  Holloway 243,  287 

Pinkham  v.  Cockell 56,  299 

Piper  v.  True 338 

Pitts  v.  State 157,  194 

Pitts  v.  Temple 206 

Plunket  v.  Bowman 257 

Poage  v.  State 367 

Polin  v.  State 99 

Pollard  v.  Maddox 338 

Pontius  v.  People 288 

Pope  v.  Askew 210,  271,272,  320 

Poppenhusen  v.  Falke 448 

Porterv.  Manuf.  Co 132 

Porter  v.  Pequonnoc,  etc. ,  Co 122 

Powell  v.  Clark 341 

Powell  v.  Ford 311 

Powers  v.  M'Ferran 304 

Pratt  v.  Battles 350 

Pratt  v.  Rawson... ..  290 

Prentiss  v.  Blake 349 

Preston  v.  Keene 348 

Prince  v    Blackburn 240,304 

Pyttv.  Griffith 237,307 

Quick  v.  Quick 273 

Raines  v.  Philips 251,  262 

Rake  v.  Pope  445 

Rand  v.  Inhabitants,  etc 137 

Randolph  v.  Loughlin .210,  288,  297 

Raymond  v.  Longworth 13,  347 

Raymond  v.  Sellick 256 

R.  Co.  v.  Ball .' 138 

R.  Co.  v.  Bottsford 411 

R.  Co.  v.  Caldwell   ...  , 148 

R.  Co.  v.  Campbell 138 

R.  Co.  v.  Cochran 138 

R.  Co.     .  Daniel 445 

R.  Co.     .  Finlayson 409 

R.  Co.    .George 129 

R.  Co.     .Hale 129,130 

R.  Co.    .  Hickman 320 

R.  Co.     .  Knapp 138 

R.  Co.     .  McLendon 129 

R.  Co.     .Miller 214 

R.  Co.     .  Thul 405 

R.  Co.     .  Underwood 404 

R.  Co.     .Windsor 138 

R.  Co.     .  Winslow 138 

R.  Co.     .  Yeates 445 

Reamer  v.  Nesmith 335,  339 


PAGE. 

Reaume  v.  Chambers 206 

Redford  v.  Peggy , ...264 

Reed  v.  Gage 65,    66 

Reedv.  Spicer 335,339,  361 

Reed  v.  State 279 

Reg.  v.  Cheverton 167,  373 

Reg.  v.  Connell 377 

Reg.  v.  Crofts 87 

Reg.  v.  Dale 162 

Reg.  v.  Dredge 199 

Reg.  v.  Fursey 8 

Reg.  v.  Gould 413 

Reg.  v.  Hicklin 400 

Reg.  v.  Levy 86 

Reg.  v.  Mead 409,  411 

Reg.  v.  Newton 378 

Reg.  v.  Rogers 244 

Reg.  v.  Tel.  Co 102,  111 

Reg.  v.  Tolson 8,  105 

Reg,  v.  Wycherley 400 

Reid  v.  Lord ....313 

Revett  v.  Braham 139 

Rex  v.  Atwood 370 

Rexv.  Barbot  3,36,  157 

Rex  v.  Birdseye 445 

Rex  v.  Bontieu 247 

Rexv.Bowmau 37 

Rex  v.  Brain 199 

Rex  v.  Brindley 197 

Rex  v.  Britton 445 

Rexv.  Brook 3,  36,  158 

Rex  v.  Carsewell 319 

Rex  v.  Castell  Careinion 283 

Rex  v.  Gator 139,  268,  276 

Rexv.  Clewes 10,  11,  159,  176,  181 

Rex  v.  Cornelius 411 

Rex  v.  Culpepper 295 

Rex  v.  Donellan 450 

Rex  v.  Drake 31 

Rexv.Enoch 199 

Rex  v.  Farringdon    206 

Rex  v.  Haines    36 

Rex  v.  Haynes 18,375 

Rex  v.  Hensey 264,  329 

Rex  v.  Inhabitants  Castle  Morton 283 

Rex  v.  Inhabitants  Eriswell 217 

Rex  v.  Inhabitants  Holy  Trinity 283 

Rex  v.  Inhabitants  Longnor 247 

Rexv.  LongBuckby 206 

Rex  v.  Meekley 212 

Rex  v.  Morgan 273 

Rex  v.  Newman  312 

Rex  v.  North  Petherton 215 

Rex  v.  Palayo 203 

Rexv.  Rooney 369 

Rex  v.  Rosenstein 388 

Rexv.  Ryton 206 

Rex  v.  Shakespeare 47 

Rex  v.  Tanner 47 

Rexv.Tooke 260 


XXX 


TABLE  or  CASES. 


PAGE. 

Rex  v.  Worsenham 409 

Rex  v.  Wright ..  ., 139 

Reyburn  v.  Belotti 290 

Reynolds  v.  Hankin 314 

Reynolds  v.  Staines 58,    68 

Ricardo  v.  Garcias 441 

Richardson  v.  Lumber  Co 15,  364 

Richardson  v.  Newcomb  ...258,  298,  309,  333 

Richardson  v.  Palmer 338 

Rideout  v.  Newton 260 

Rider  v.  Thompson 338 

Ridgeley  v.  Johnson ,   210 

Ridgway's  Appeal ...226,  228 

Riggv.Wilton 298 

Risk  v.  State 18,  38,  40,  387 

Roach  v.  Hill 55,    56 

Robards  v.  Wolfe 243 

Roberts  v.  Roberts 11,  338 

Roberts  v.  Stanton 261 

Roberts  v.  State 445 

Robertson  v.  Du  Bose 33 

Robertson  v.  Starke.. 128 

Robinson  v.  Button 336 

Robinson  v.  State 17,  383 

Robson  v.  Thomas 222 

Rockwell  v.  Baldwin 340 

Roden  v.  Ryde 64,  68,  70,  314,  315 

Roe  v.  Harvey 409 

Roe  v.  Rawlings 206,  273 

Roosevelt  v.  Gardinier 314 

Rowley  v.  Bartholomew 14,  359 

Rowt  v.  Kile 320 

Ruckmaboye  v.  Mottichund 298 

Ruloff  v.  People 8,  102,  103,  112,  201,  274 

398,  400 

Rumbold  v.  Rumbold 11,  336 

Rumford  Chemical  Works  v.  Hecker  ...    116 

Russell  v.  Coffin 238,  257,  264 

Russell  v.  R.  Co 187 

Russell  v.  Smyth 2.63,  64,  68,  244,  316 

Russell  v.  Tunno ,  Pinckney  &  Co 64 ,    68 

Ruston  v.  State 374 

Sackett  v.  Spencer 290 

Saffordv.  Grout 446 

Salem  Bank  v .  Gloucester  Bank 263 

Salisbury  v.  State    383 

Samuel  v.  Cheney 73 

Sargent  v.  Adams 24 

Sartorv.  Bolinger 320 

Sarveut  v.  Hesdra ....  320 

Sasser  v.  Ohio 279 

Saterv.  P.  R.  Co 138 

Bayer  v.  Glosaop 220 

Schaible  v.  Life  Ins.  Co 8,  106 

Schley  v.  Pull.  Car  Co 350 

Bchroederv.  R.  Co 406,  411 

Sebree  v.  Dorr 256 

Seddon  v.  Tutop 445 

Seeley  v.  Manning 855 


PAGE. 

Selby  v.Clark 253 

Selvidge  v.  State 413 

Settle  v.  Alison 206 

Se well  v.  Evans 60,  64,  66,  68,    70 

Sexton  v.  North  Bridgewater 137 

Shafto  v.  Shafto 401 

Shaller  v.  Brand 209 

Shank  v.  Butsch 320 

Sbarpv.  Sharp 257,275 

Shattuck  v.  Comrs 137 

Shaw  v.  Charlestown 137 

Shawv.State 47 

Shepard  v.  R.  Co 406 

Shepherd  v.  People 163,  182 

Sherman  v.  McCarthy 343 

Shinkell  v.  Letcher 52 

Shook  v.  Pate 8 

Shorb  v.  Kinzie 320 

Short  v.  State 7,    93 

Sibley  v.  Smith 407 

Sigfried  v.  Levan 262,  287,  289 

Sill  v.  Reese 331 

Simmons  v.  State 279 

Simpson  v.  Dismore 60,    64 

Singer  Co.  v.  McFarland 320 

Singleton  v.  Barrett 282 

Singleton  v.  Bremar 293 

Sitler  v.  Gehr 33,  64,  74,  222 

Skelton  v.  Sackett 85 

Slaymaker  v.  Wilson 320 

Sluby  v.  Champlin ...243,  253,  254,  304 

Smith  v.  Com  201 

Smithv.Dodge ,..,   341 

Smith  v.  Fenner 275 

Smith  v.  Garden 350,  351 

Smith  v.  Handy 347 

Smith  v.  Henderson 75,  246 

Smith  v.  Johnson 445 

Smith  v.  McLean 14,  357,  358,  359,  366 

Smith  v.  Murphy 341 

Smith  v.  Rankin 209 

Smith  v.  Sainsbury 258,  264 

Smith  v.  State 88,  393,  397 

Smith  v.  Strong 11,  336 

Smith  v.  Talbot 445 

Smith  v.  Walton 260 

Smith  v   Whitman 96 

Smith's  Appeal 227 

Snow  v.  Boston,  etc 138 

Snyder  v.  McKeever 320 

Sollta  v.  Yarrow 273,  278,  303 

South.  Ex.  Co.  v.  Thornton 290 

South  wick  v.Stevens 829 

Spaulding  v.  Mozler 363 

Spear  v.  Richardson 143 

Speerv.  Craig 81,  313 

Spencer  v.  Spencer 332 

Sperry  v.  Tebbs 212 

Spies  v.  People 99,  186 

Spoonemore  v.  State 68 


TABLE  OF  OASES. 


XXXI 


PAGE. 

Spradllng  v.  Conway 445 

Spring  v.  Ins.  Co 254,258,  282 

Stahl  v.  Berger       . 287 

Stanley  v.  Green 341 

State  v.  Adams  .. 387,395 

State  v.  Ah  Chuey    411 

State  v.  Alexander 92 

State  v.Allen 257,264,271,320,327 

State  v.  Arthur 165 

State  v.  Avery 153 

State  v.Babb 150 

State  v.  Bartlett 66 

State  v.  Bennett 40,    41 

Statev.  Berlin 385,  387,  396 

State  v.  Bishop 17,  375 

Statev.  Britt 18,  40,  41,  387 

State  v.  Cameron —     445 

State  v.  Cheek 290 

State  v.  Clinton 320 

State  v.  Coupenhaver 92 

State  v.  Curran 97,  222 

State  v.  Damon 446 

Statev.  Danforth 39 

Statev.  Floyd 41 

State  v.  Folwell 4,  132,142,  149 

Statev.  France  183 

Statev.Fritz 320 

State  v.  Garrett 412 

Statev.Gay    260 

State  v.  German 193,  200 

State  v.  Oilman 414 

State  v.  Gilmanton 12,  334 

State  v.  Givens 320 

State  v.  Graham 413 

Statev.  Grant 72 

State  v.  Havely 222 

State  v.  Hennessey 445 

State  v. Hooper 325 

State  v.  Hopkins 77 

Statev.  Houser 7,164,  394 

Statev.  Huxford 141 

State  v.  Jacobs  41,413 

State  v.  Johnson 413 

Statev.  Kelly 150 

State  v.  Kelsoe 76 

State  v.  Kepper 374 

Statev.  Rnapp 92 

State  v.  Lincoln 82 

Statev.  Lull 382 

Statev.  Manning 81.  314 

Statev.  Martin 40,    8l 

State  v.  McGuire 66,    97 

Statev.  Moelchen 137 

Statev.  Moore 64,97,  345,  246 

Statev.  Moran. 393 

Statev.  Morris 76,  144 

Statev.  Nash 446 

Statev.  Newlln 6,  129,  130 

Statev.  Norris. ..  5 


PAOE. 

Statev.  Parish.  446 

Statev.  Patton 41 

Statev.  Petty 324,  325 

Statev.  Pike ...  149 

State  v.  Quarles 412 

State  v.  Rankin 445 

State  v.  Reitz 137,  145 

State  v.  Robinson ..    34 

State  v.  Sanders    6,92,387 

State  v.  Shaw 239 

State  v.  Shinborn 141, 153, 157,  290,  369 

Statev.  Smith 81 

Statev.  Somerville 17,  383 

State  v.  Spence 290 

Statev.  Stair 7,    98 

State  v.  Standifer 446 

State  v.  Taylor 445 

State  v.  Trice 77 

State  v.  Tutt... 325 

Statev.  Vincent....      8,  10,168,  173,  175 

Statev.  Vittum 5,75,126,  157,  245 

Statev.  Ward  321 

Statev.  Weare 72 

State  v.  Williams 10, 150,  157, 178,  445 

State  v.  Wilson 41,    56 

State  v.  Woodruff 40,    41 

State  Bank  v.  Seawell 256 

Steamboat  Clipper  v.  Logan 153 

Stebbing  v.  Spicer 76 

Stebbins  v.  Duncan 70 

Steinmann  v.  Strimple 85 

Stephens,  Be..   ... 113,115,274 

Stephenson  v.  State 3,    44 

Stevens  v.  Stebbins 85 

Stewart  v.  State 84 

Stockbridge  v.  West  Stockbridge..  ..  205,  206 

210 

Stocking  v.  State 201 

Stoddardv.  Chambers 206 

Stokes  v.  State 90,414 

Story  v.  State 7,  92 

Stranger  v.  Searle 246,  264,  267,  337 

Strong  v.  Brewer 260 

Strotherv.  Barr 283 

Stuart  v.  Binsse 8 

Stuart  v.  Havens 404 

Stumm  v.  Hummel 39 

Stump  v.  Hughes 258 

Swan  v.  County  of  Middlesex 143 

Sweetser  v.  Lowell 289,323 

Sweigart  v.  Richards  208 

Sydlemanv.  Beckwith 122,140,  149 

Talbotv.  Hodaon 205,206,  262,  330 

Tarleton  v .  Johnson 445 

Tatev.  R.  Co 5,  138 

Taylorv.  Cook 299 

Taylor  v.  Meekly..  252,289,  294 

Taylorv.  State 44,81, 157, 193,  201 

Teat  v.  State 445,  446 


XXX11 


TABLE  OF  CASES. 


PAGE. 

Tharpe  v.  Gisburne 292 

Thatcherv.  Gofl 257 

The  Queen  v.  Davis 54 

Thomas  v.  Desney 229 

Thomas  v.  State 100 

Thomas  v.  Turnley 262 

Thompson  v.  Thompson    344 

Thorn  v.  Sutherland 137 

Thorndike  v.  Richards 335 

Thornton  v.  Royal  Exchange  Assurance 

Co 139 

Thruston  v.  Masterson 206 

Tichborne  case 3,271,273,  274 

Tindallv.  Wasson  14,357,  358 

Tinneyv.  State  — 370 

Titfordv.  Knott 257,264,  320 

Tolbertv.  Hortou 14,  360 

Tomev.  R.  Co 210,  274 

Tompkins  v.  Henderson 14,  360 

Townsendv.  Downer 210 

Tracy  Peerage  case 332 

Treadwell  v.  Stebbins 444 

Trelawney  v.  Colman 153 

Treon  v.  Emerick 347 

Trimble  v.  State 85,229 

Tucker  v.  Spalding 447 

Tullyv.  Davis 351 

Turney  v.  Yeoman 13,348 

Turnipseed  v.  Hawkins  257,  264 

Turnpike  Co.  v.  Baily 407 

Turnpike  Co.  v.  Myers   287 

Turquandv.  Strand  Union    387 

Turrill  v.  R.  Co 447 

Twentyman  v.  Barnes 387 

Udderzook  v.  Com.,  8, 102, 108, 109, 114,  274,  398 

400 

Underwood  v.  Waldron 152 

Ungles  v.  Graves 253 

United  States  v.  Craig 272 

United  States  v.  Holtsclaw 329 

United  States  v.  Keen    279 

United  States  v.  Porter. 256 

United  States  v.  Prout 260 

United  States  v.  Simpson 290 

United  States  v.  Williams 383 

Urket  v.  Coryell...  206 

Urquhartv.  Burlesoo 340 

Valentine  v.  Piper 806 

Van  Deusen  v.  Frink 256 

Vandlne  v.  Burpee 143 

Van  Dyne  v.  Thayre 256 

Vanborn  v.  Frick ..256 

Van  Patten  v.  Leonard 15,362 

VanWyckv.  Mclutosh 288,  320 

Vattler  v.  Hlnde 206 

Vawter  v.  Griffin 16,  862 

Vlckroy  v.  Skelley 210 

Vllaa  v.  Reynolds 8 


PAGE. 

Vinton  v.  Peck 310 

Vosev.  Handy 336 

Waddlngton  v.  Cousins 270,  273 

Wagner  v.  Aiton , 210 

Walkerv.  Boston 137,  143 

Walkerv.  Curtis 102,398,  400 

Walkerv.  State 81,  414 

Walker  v.  Wingfleld 215 

Walker  v.  Woollen 65,    56 

Wallis  v.  Delancey 307 

Walls  v.  Preston 338 

Walsh  v.  Sayre 409 

Walton  v.  Coulson 306 

Wardv.  State 57,80,    83 

Wardell  v.  B'ermor 255,  256 

Warlickv.  White 40,41,  415 

Warren  v.  Anderson 70,  75,  304 

Warren  v.  Wheeler 138 

Washington  v.  Love 364 

Waterman  v.  Johnson 11,  334,  353 

Weathered  v.  Mays 446 

Webb  v.  St.  Lawrence  304 

Webster's  case 10, 18, 157, 162, 170, 176,  178 

181,  387,  393 

Webster  v.  Atkinson 336 

Websterv.  Lee 446 

Wedgwood  case 215 

Weed  v.  Carpenter 259 

Weitzel  v.  State 83 

Wemyss  v.  Hopkins 445 

Wendell  v.  People 336 

Wetherbee  v.  Bennett 137 

Wheelden  v.  Wilson. 365 

Wheeler  v.  Van  Houten 445 

Whelen  v.  Weaver 85 

Whitaker  v.  Salisbury 252 

Whitcoinb  v.  Whiting 310 

Whitev.Com 166 

Whitev.Gay 336 

White  v.  Hermann 353 

Whitev.R.Co 406 

White  v.  Simonds 445 

Whitev.  State 413 

Whitelockev.  Musgrove..68,  243,304,314,  315 

316,  317 

Whiteslde  v.  Singleton 340 

Whitman  v.  R.  Co 187 

Whittemore  v.  Brooks.... 260,  255,  258,  306,  807 

Whittemore  v.  Gibbs  362 

Whittemore  v.  Whittemore 445 

Whittierv.  Franklin 153 

Wiggins  v.  Pryor 256 

Wilburv.  Clark 64,    68 

Wllcox  v.  Lee 445 

Wiloox  v.  Wiicox 112 

Wilkerson  v.  Schoonmaker. 222 

Wilklns  v.Malone 412 

Wilkinson  v.  Moseley 129,141,  153 

Wllksv.  Lorck 419 


TABLE  OF  CASES. 


xxxni 


PAGE. 

Willey  v.  Snyder. 15,359,  366 

Williams  v.  State 81,  320 

Williamson  v.  Tingling 132 

Willis  v.  Qulmby 139,  153 

Williston  v.  Morse 354 

Willman  v.  Worrall 264 

Willson  v.  Betts 206,  210 

Wilmer  v.  Harris 256 

Wilsonv.  Benedict 85 

Wilson  v.  Kirkland 210 

Wilson  v.  State  ...     ...445 

Wilton  v.Edwards 44,59,    68 

Winder  v.  Little 69 

Wing  v.  Anthony.... 449 

Wing  v.  Burgis 353 

Winn  v.  Patterson    206t  207,  241 

Winslow  v.  Ins.  Co 357 

Winston  v.  Gwathmey 210 

Winter  v.  Landphere 357 

Wofford  v.  McKinna 12,  342 

Wood  v.  Fletcher ,,,.,. 81,  313 

E 


PAGE. 

Wood  v.  Reynolds 228 

Wood  v.  Wlllard 8 

Woodard  v.  Spiller 320 

Woodman  v.  Lane 335 

Woodward  v.  State 144,  149 

Woolley  v.  Constant 286 

Wright  v.  Carpenter. .. 396,  401 

Wylde  v.  Porter 310 

Wyman  v.  R.  Co 137 

Wynnev.  State 95,  188 

Yahn  v.  Ottumwa 141 

Yantv.Harvey 13,357,358 

Yates  v.  Judd 12,  834 

Yatesv.Yates 320 

York  Bank's  Appeal 226 

Yostv.  Conroy 129,  130 

Youngv.  Black 444 

Youngv.  Honner 320 

Youngv.  State 137,  157 

Younge  v.  Honner. 271 


THE 


LAW  OF  IDENTIFICATION. 


CHAPTER  I. 


INTRODUCTION. 


SEC. 

1.  Identity  of  persons  and  things. 

2.  Means  of  identifying  —  persons  by 

name  —  rule  as  to. 

3.  Personal    identity  by  personal  ap- 

pearance . 

4.  Same — mean  s  of  knowledge — proofs 

to  be  made. 

5.  Same  —  uncertainty     of     personal 

identity. 

6.  Same  —  by  circumstances  —  opinion 

evidence. 

7.  Same  —  opinion      evidence  —  when 

admissible. 

8.  Circumstantial    evidence  —  identity 

of  accused. 

9.  Tracks  found  near  scene  of  crime. 

10.  Clothing  of  the  deceased  exhibited 

to  the  jury. 

11.  Same  —  dress  —  identity  of  person 

—  murder  —  rape. 

12.  Personal      identity     photograph — 

various  purpose. 

13.  Personal    identity   by  the  voice  — 

when  admissible. 

14.  Same  —  rule  in  Texas  —  arson  —  and 

Massachusetts  — attempt  at  arson. 

15.  Dead  bodies  —  identification  thereof. 

16.  Same  —  body    when     burned      or 

drowned. 

17.  Identification  of  dead  body  by  teeth. 


SEC. 

18.  Land  —  identification  by  deed. 

19.  Realty  —  bounded  on  a  pond  —  ditch 

cut  on  land. 

20.  Same  —  bounded    on  a  river — not 

navigable. 

21.  When  river  the  dividing  line. 

22.  Requisites  —  description  —  tax  deed 

—  construction. 

28.  Personal    property  —  necessity    for 
identification. 

24.  Description  —  mule  —  horse  —  oxen. 

25.  Animals   described  —  chattel   mort- 

gage —  sufficiency. 

26.  Animals  and  other  personalty. 

27.  Description  —  what  to  include  —  un- 

certainty. 

28.  Same  —  when  valid  —  false  descrip- 

tion. 

29.  Stolen      property  —  identity      of  — 

marks  and  brands. 

30.  Same  —  cattle,  etc.,  rule  in  Texas 

and  North  Carolina. 

31 .  Money  —  cask  —  proof — production 

—  identity. 

32.  Larceny  —  requisites  —  identity    of 

owner  and  goods. 

33.  Portable  goods  brought  into  court 

for  identification. 

34.  Burglary  —  larceny    by    millers  — 

adulteration. 


Identification  of  persons  and  things. 

§  1.  It  is  proposed  in  these  pages  to  introduce  the  law  and  rules 
of  identity  of  persons  and  things  as  a  separate  branch  of  the  law  of 
evidence.  It  has  become  a  question  of  growing  importance  and  one 
that  is  daily  before  the  courts ;  perhaps  the  question  of  personal 
identification  is  now  one  of  the  greater  importance,  not  only  because 
the  doctrine  that  the  identity  of  name  was  evidence  of  identity  of 


2  THE  LAW  OF  IDENTIFICATION. 

person,  has  measurably  exploded,  except  in  the  examination  of  titles 
to  real  estate ;  but  because  of  the  great  number  of  important  cases 
of  mistaken  identity,  both  in  civil  and  criminal  practice,  and  in 
cases  involving  the  identity  of  the  living  and  the  dead.  Parties  to 
actions,  the  ancestor  and  the  heirs  to  estates,  questions  of  pedigree, 
marriages,  births  and  deaths ;  questions  of  vendor  and  vendee, 
ancient  records  and  documents,  and  parties  thereto,  and  the 
degree  of  evidence  necessary  to  establish  them,  and  the  doctrine  of 
idem  sonans.  Next  in  importance  is  the  identification  of  things, 
of  property,  real  and  personal ;  real  estate  as  identified  by  the 
description  in  the  instrument,  deed,  will,  or  other  conveyance, 
whether  it  be  described  by  name,  number,  monuments  or  metes  and 
bounds,  one  or  all,  general  or  particular.  Of  personal  property,  as 
between  claimants,  in  chattel  mortgages,  bills  of  sale,  of  stolen 
property,  instruments  causing  violence  or  producing  death,  etc. 

Means  of  identifying  —  persons  by  name  —  rule  as  to. 

§  2.  The  former  rule,  as  above  intimated,  that  the  identity  of 
name  was  evidence  of  the  identity  of  the  person,  is  not  now  enforced, 
except  perhaps  in  the  examination  of  records  to  trace  a  chain  of 
title  to  real  estate,  and  a  few  other  exceptional  cases,  in  which  it 
raises  a  mere  presumption.  The  rule  in  England  seems  to  be,  that 
as  between  parties  to  actions,  the  identity  of  name  alone  is  sufficient 
to  throw  the  onus  probandi  upon  the  defendant,  to  show  that  he  is 
not  the  person  spoken  of.1  Where  the  death  of  a  plaintiff  was 
suggested,  and  records  of  the  court  of  the  county  where  he  had 
resided,  showed  that  letters  of  administration  were  granted  on  the 
estate  of  a  person  of  the  same  name,  it  was  held  sufficient  to  revive 
the  action  in  the  name  of  the  administrator  of  his  estate.2  And  it 
was  held  in  England  and  also  in  Massachusetts,  that  where  the  name, 
the  residence  and  the  occupation,  trade  or  profession  of  the  party 
defendant  to  an  action,  were  the  same,  the  onus  was  thrown  upon 
him  to  disprove  the  identity.3  * 

Personal  identity  by  personal  appearance. 

§  3.  This  branch  of  the  subject,  simple  as  it  may  seem,  and  free 
from  difficulty  in  the  estimation  of  those  unaccustomed  to  reasoning 

1  Hamber  v.  Roberts,  7  C.    B.  861;  18        8  Com.    v.   Costello,   120  Mass.    369; 
L.  J.  Rep.  (N.  8.)  C.  P.  250     See  §  183.     Russell  v.  Smyth,  9  M.  &  W.  818. 
9  Clark  v.  Pearson,  58  Ga.  496. 

•  Most  of  the  matters  in  this  introduction  will  be  more  Cully  considered  hereafter. 


INTBODUCTION.  3 

on  the  subject,  is,  on  the  contrary,  perhaps  one  of  the  most  difficult 
questions  with  which  courts  and  juries  are  called  upon  to  deal.  The 
change  in  the  appearance  of  the  person  whose  identity  is  in  ques- 
tion, wrought  by  age,  mode  of  life,  hardships,  toil  and  care,  some- 
times coupled  with  a  skillful  disguise.  Again,  the  want  of  percep- 
tion and  discrimination  in  the  identifying  witnesses;  these  and 
numerous  other  causes  have  led  to  numerous  cases  of  mistaken  iden- 
tity, both  in  ancient  and  modern  times,  and  in  all  civilized  countries,  as 
we  shall  see,  in  both  civil  and  criminal  causes.  Sometimes  position  and 
estates  are  acquired  by  fraud,  and  again,  the  innocent  is  punished,  and 
not  unfrequently  the  guilty  escapes,  from  a  mistake  in  the  personal 
identity.  These  questions  are  fraught  with  their  dangerous  conse- 
quences, and  difficult  in  their  solution,  and  are  of  the  greatest  import- 
ance in  the  affairs  of  men.  But  where  is  the  remedy?  It  lies  alone 
in  caution  and  prudence.  Observation  and  sad  experience  admonish 
courts  and  juries  to  the  use  of  the  utmost  care,  caution  and  prudence. 

Same  —  means  of  knowledge  — proof  to  be  made. 

§  4.  Personal  identity  is  not  even  to  be  presumed  from  appearance, 
whether  it  indicates  youth  or  age.  One  indicted  for  profanation  of 
the  Sabbath,  under  a  statute  prohibiting  labor  on  that  day,  by  a 
person  upwards  of  fourteen  years  of  age.  Though  on  the  trial  he 
appeared  to  be  a  full-grown  man,  it  was  not  sufficient,  because  the 
proof  did  not  show  that  he  was  of  the  age  prescribed.1  The  size  of  a 
person  most  generally  makes  the  first,  and  perhaps  the  most  durable  im- 
pression upon  the  observer,  when  applied  to  the  person  to  be  identified, 
whether  excessive  in  size  or  diminutive,  yet  this  may  as  a  circumstance 
alone  have  but  little  if  any  weight,  for  many  and  obvious  reasons.2 
One  of  the  striking  illustrations  of  the  uncertainty  of  evidence  of 
personal  identity  by  appearance  was  the  Tichborne  case  in  England, 
which  lasted  one  hundred  and  three  days.  A  roving  impostor  (to 
take  the  adverse  view)  claimed  to  be  Tichborne,  and  proved  himself 
so  to  be,  by  eighty -five  witnesses,  comprising  Tichborne's  mother 
the  family  solicitor,  one  baronet,  six  magistrates,  one  general,  three 
colonels,  one  major,  two  captains,  thirty-two  non-commissioned 
officers  and  privates,  four  clergymen,  seven  tenants,  and  seventeen 
servants.  And  nearly  as  many  swore  that  he  was  another  man.3 
And  his  case  broke  down  on  cross-examination. 

1  Stephenson  v.  State,  28  Ind.  272.  s  Barbofs  case,  18  State  Trials,  1267; 

8  Tichborne  case,  see  §  613,  note.  Rex  v.  Brook,  31  id.  1124. 


4  THE  LAW  OF  IDENTIFICATION. 

Same  —  uncertainty  of  personal  identity. 

§  5.  An  interesting  case,  which  will  appear  more  at  length  here- 
after, occurred  in  New  York  and  was  tried  in  1801.  Thomas  Hoag, 
alias  Joseph  Parker,  was  indicted  for  bigamy,  and  Parker  was  tried 
and  acquitted.  The  question  was  solely  one  of  identity.  About 
twenty  witnesses,  well  acquainted  with  Hoag,  swore  positively  that 
the  prisoner  was  Hoag,  while  nearly  an  equal  number  swore  that  it 
was  not  Hoag,  but  Parker.1  It  has  been  well  said  that  permanency 
of  individuality  must  be  the  law,  in  all  questions  as  to  the  inferences 
of  identity.  Then  we  must  assume  that  no  two  persons  are  exactly 
similar  in  every  particular.  Time  leaves  its  marks  on  every  individual, 
and  the  testimony  of  the  most  discriminating  witness,  after  a  lapse  of 
time,  can  establish  personal  identity,  at  best,  but  imperfectly,  and 
where  a  very  striking  resemblance  is  supposed  to  exist,  it  is  often 
more  probable  that  the  witness  is  mistaken  than  that  the  resemblance 
really  exists.  A  person  may,  by  a  skilful  disguise,  deceive  for  a  time 
the  most  discriminating  of  identifying  witnesses.  Persons  change 
by  illness,  accident,  loss  of  voice,  loss  of  teeth,  affecting  articulation. 
Indeed,  in  some  cases  personal  identity  has  been  established  by  the 
voice  alone,  but  this  must  be  unsatisfactory.2 

Same  —  by  circumstances  —  opinion  evidence. 

§  6.  At  an  early  period  in  life  two  persons  may  be  undistinguishable; 
by  divergence  they  assume  distinctive  types,  and  the  presumption 
that  they  will  continue  the  same  grows  weaker,  and  cannot  be  ex- 
tended to  the  question  of  identity  further  than  to  imply  such  con- 
tinuance, subject  to  the  changes  necessarily  wrought  by  the  relentless 
hand  of  time.  The  identity  of  persons  by  their  appearance  and  by 
closest  examination  and  scrutiny  seems  to  be  far  from  satisfactory, 
certain  or  conclusive.  Apart  from  this,  as  a  means  of  knowledge,  per- 
sonal identity  is  most  frequently  established  by  circumstances  and  by 
opinion  evidence ;  the  latter  of  which  is  often  admissible  to  prove 
identity,  and  this  is  an  exception  to  the  general  rule  which  excludes 
the  opinions  of  all  witnesses  except  experts.3  And  very  frequently 
in  criminal  cases,  as  we  shall  see,  by  circumstantial  evidence  which 
points  to  the  accused  as  the  perpetrator  of  the  crime  while  a  single 

1  People  v.  Hoag.SCity  H.  Rec.  124.  Bennett  v.  Meehan,  83  Ind.  569  ;  State 

And  see  Ram  on  Facts,  442.  v.  Folwell,  14  Kan.  105  ;  Currier  v.  R. 

8  Brown  v.  Com.,  76  Pa.  St.  319;  Com.  R.  Co.,  84  N.  H.  498  ;  Barnes  v.  Ingalls, 

T.  Scott,  123  Mass.  222.  39  Ala.  193  ;  Brink  v.  Ins.  Co.,  49  Vt. 

«  Kearney  v.  Farrell,  28  Conn.  317 ;  442. 


INTRODUCTION.  5 

circumstance  may  be  weak,  a  combination  of  circumstances,  all  cor- 
roborating, may  establish  identity. 

Same  —  opinion  evidence  —  when  admissible. 

§  7.  Evidence  of  identity,  when  given  in  the  most  positive  and 
direct  manner,  is  often  but  the  mere  opinion  of  the  witness,  and 
hence  he  is  required  to  give  the  facts  upon  which  he  based  his  state- 
ment, as  the  jury  have  a  right  to  it  to  aid  them  in  their  determina- 
tion of  the  matter  in  issue.1  The  opinion  of  a  non-expert  witness 
was  held  to  be  competent  evidence,  even  as  to  thp-  soundness  of  a 
person's  mind,  he  having  stated  the  facts  upon  which  he  based  such 
opinion.2  But  in  Connecticut,  in  a  trial  for  burglary,  the  court  ad- 
mitted the  opinion  of  witnesses  on  the  question  of  identity,  and  then 
instructed  the  jury  to  act  upon  the  weight  or  preponderance  of  tes- 
timony as  to  the  identity.  This  was  held  to  be  error  because  it  ex- 
cluded from  the  jury  the  question  of  reasonable  doubts.3  It  is  now 
the  rule  in  most  of  our  States  to  admit  the  opinion  of  non-expert  wit- 
nesses on  all  questions  of  identity,  whether  it  be  of  persons  or  things ; 
and  as  an  exception  to  the  general  rule  of  evidence,  is  deemed 
worthy  of  a  chapter  in  this  work,  to  show  where  the  exception  ap- 
plies.* 

Circumstantial  evidence  —  identity  of  accused. 

§  8.  Where  a  homicide  is  committed  in  the  presence  of  others,  as 
it  often  occurs,  there  may  be  no  question  of  the  identity  of  either 
the  deceased  or  the  accused  ;  but  where  a  dead  body  is  found,  there 
are  often  three  important  questions  —  the  identity  of  the  deceased,  was 
he  murdered  ?  and  who  did  it  ?  the  latter  involving  the  identity  of 
the  perpetrator  of  the  crime ;  for  the  investigation,  if  the  killing  is 
recent,  the  first  thing  is  to  look  for  tracks,  and  for  blood-stains,  and 
for  weapons  or  instruments  of  violence  ;  if  tracks  are  found,  how 
many,  their  measurement,  in  what  direction  they  were  going  or 
coming;  if  blood-stains,  in  what  direction  from  the  dead  body ;  if 
weapons  are  found,  did  they  belong  to  the  deceased  or  to  the  accused  ? 

1  Whart.    Cr.  Ev.,  §  807;   Jones   v.  N.  H.  519;   Holten  v.  Board,  etc.,  55 
White,  11  Humph.  268.  Ind.  194;  Elliott  v.  VanBuren,  33  Mich. 

2  State  v.  Newlin,  69  Ind.  108.  49,  Funston  v.  R.  R.  Co.,  61  Iowa,  452; 

3  State  v.  Morris,  47  Conn.  179.  Colee  v.  State,  75  Ind.  511;  Alexander 

4  Cunningham  v.  Bank,  21  Wend.  557;  v.   Town  of  Mt.  Sterling,  71  111.  366; 
Com.  v.  Dowdican,  114  Mass.  257;  Hal-  Clifford    v.    Richardson,    18    Vt.    620; 
lahan  v.  R.  R.  Co.,  102  N.  Y.  194;  Cooper  Cooper  v.  State,  53  Miss.  393;  Curtis  v. 
v.  State,  23  Tex.  339;  Cottrill  v.  My-  R.  R.  Co.,  18  Wis.  327;  Tate  v.  R.  R. 
rick,   3  Fairneld  (Me.),   322;  People  v.  Co.,  64  Mo.  149. 

Rolfe,  61  Cal.  541;  State  v.  Vittum,  9 


6  THE  LAW  OF  IDENTIFICATION. 

Any  of  these  circumstances,  though  very  slight,  and  wholly  insuffi- 
cient, except  to  arouse  suspicion,  will  yet  direct  attention  and  limit 
the  inquiry,  and  may  lead  to  a  combination  of  circumstances  all  point- 
ing in  one  direction,  and  may  be  sufficiently  strong  to  justify  the 
arrest  of  the  supposed  perpetrator.  Then  if  the  tracks  correspond; 
if  there  is  any  thing  belonging  to  the  accused  found  near  the  dead 
body  ;  or  any  thing  belonging  to  the  deceased  found  in  the  possession 
of  the  accused,  —  these  circumstances  strengthen  suspicion  and  render 
his  guilt  almost  reasonably  certain. 

Tracks  found  near  the  scene  of  the  crime  —  evidence. 

§  9.  Where  an  assault  was  made,  on  a  dark  night,  upon  a  man  in 
his  bed,  the  only  question  for  the  Supreme  Court  was  the  instruc- 
tions to  the  jury  and  the  identity  of  the  accused;  tracks  were  found 
near  the  scene,  made  in  the  dust  by  an  old  boot  or  shoe  which  had  a 
hole  in  the  bottom;  counsel  insisted  that  the  shoe  could  not  make 
such  a  track  as  described.  On  the  next  morning,  after  the  jury  re- 
tired and  before  verdict,  one  of  the  jurors  amused  himself  with  an 
old  shoe,  making  tracks  in  the  dust  by  way  of  experimenting;  for 
this  reason  the  conviction  was  set  aside.1  Where  the  deceased  was 
sitting  in  his  room  at  night  he  was  shot  through  the  window  and 
killed  ;  tracks  were  found  on  a  flower-bed  outside,  under  the  window, 
which  led  to  the  discovery  of  the  murderer.2  The  number  of  the 
tracks  and  the  direction  is  sometimes  of  the  greatest  importance, 
when  taken  together  with  other  surrounding  circumstances.3  In  the 
case  of  Mrs.  Arden  and  others  who  were  convicted  of  the  murder  of 
her  husband  in  England  in  1551,  it  appeared  that  the  crime  was 
committed  in  the  house  and  the  body  carried  into  an  adjoining  field 
and  left.  Snow  having  fallen,  it  was  seen  that  there  were  tracks 
only  from  the  house  to  the  dead  body ;  this  limited  the  inquiry  to 
the  house,  where  new  and  conclusive  indications  of  guilt  were  dis- 
covered.4 Mr.  Burrill  gives  a  singular  case  of  identification.  Im- 
pressions were  found  in  the  soil  near  the  scene  of  the  crime,  of  the 
knee  of  a  man  who  had  worn  pants  of  striped  corduroy,  and  patched 
with  same  material,  but  the  patch  was  not  set  on  straight,  and  the 
ribs  of  the  patch  meeting  the  hollows  of  the  garment  into  which  it 
had  been  inserted,  and  this  corresponded  with  prisoner's  pants.5 

1  State  v.  Sanders,  68  Mo.  202.  4  London  Legal  Observer,  59. 

•  Linsday  v.  People,  63  N.  Y.  145.  6  Burrill  Cir.  Ev.  269. 

•  Cicely  v.  State,  13  8.  &  M.  (Miss.)  202,  219. 


INTRODUCTION.  7 

Clothing  of  deceased  exhibited  to  the  jury. 

§  10.  Perhaps,  as  a  means  of  identifying  a  person,  living  or  dead, 
or  for  whatever  purpose,  the  clothing  worn  is  first  to  be  observed. 
On  a  trial  for  murder  in  Indiana,  the  trial  court  permitted  the  cloth- 
ing worn  by  the  deceased  at  the  time  of  the  renconter  which  re- 
sulted in  his  death,  to  be  exhibited  to  the  jury,  and  this  was  held  to 
be  proper;  they  may  shed  some  light  upon  the  character  of  the 
wounds  and  the  manner  of  their  infliction  ;  or,  where  the  pockets  are 
cut  or  turned  inside  out,  it  may  show  the  motive.1  And  in  Texas, 
where  a  murder  was  committed  by  shooting,  the  clothing  worn  by 
the  deceased  were  put  in  evidence,  and  the  shot  holes  exhibited  to 
the  jury,  and  it  was  not  a  valid  objection  that  the  clothes  could  not 
be  sent  up  in  the  record  of  the  evidence.2  A  similar  ruling  was 
held  in  the  same  State  in  a  former  case.3  The  garment  worn  by  the 
deceased  at  the  time  of  the  shooting  was  exhibited  to  the  jury  to 
show  the  position  of  the  slayer.  This  was  admissible.4  In  still  an- 
other case,  the  deceased  was  identified  by  his  overcoat,  coat,  pants, 
vest,  hat,  etc.  This  was  held  correct.5  And  in  Missouri,  it  was  held 
proper  to  permit  the  jury  to  inspect  blood-stains  on  clothing  worn 
by  the  deceased  at  the  time  he  was  killed.6 

Same  —  dress  —  identity  of  person  —  murder  —  rape. 

§11.  In  Missouri,  on  a  trial  for  murder,  it  was  sought  to  show 
the  presence  of  the  accused  at  the  time  and  place  of  the  homicide 
by  showing  the  identity  of  a  shirt  with  blood-stains  on  it,  which  was 
|ound  the  next  morning  at  the  scene  of  the  crime,  identified  with 
the  shirt  worn  by  the  accused  on  the  previous  day,  but  the  prosecu- 
tion failed  to  fully  identify  the  shirt  as  that  of  the  accused.6  In 
Massachusetts,  a  party  was  tried  for  rape  ;  after  the  alleged  act  he 
was  pursued;  from  the  description  given  of  him  by  the  prosecutrix 
describing  his  dress,  the  information  was  obtained  which  led  to  his 
arrest.  Persons  who  described  the  dress  to  those  in  pursuit,  were 
held  competent  witnesses  for  the  defendant,  to  show  that  the  dress 
so  described  differed  from  that  worn  by  him  at  the  time  they  saw 
him  on  the  day  of  the  alleged  crime.7 

1  Story  v.  State,  99  Ind.  413.  And  see        -King  v.  State,  13  Tex.  App.  280. 
McDonel  v.   State,  90  id.  320;  Short  v.        4  Early  v.  State,  9  Tex.  App.  476. 
State,  63  id.  376;  Beavers  v.  State,  58        5  State  v.  Stair,  87  Mo.  268. 

id.  530.  6  gtate  v>  Houser,  28  Mo.  233. 

2  Hart  v.  State,  15  Tex.  App.  202.  T  Com.  v.  Reardon,  4  Gray,  420. 


8  THE  LAW  OF  IDENTIFICATION. 

Personal  identity  by  photographs  —  various  purposes. 

§  12.  Plans  and  diagrams  were  often  received  in  evidence  long 
before  the  invention  of  photographs,  even  in  murder  cases,  when 
properly  authenticated,  and  parol  evidence  of  buildings,  monuments, 
and  all  such  objects,  because  they  could  not  be  brought  into  court  to 
exhibit  to  the  court  and  jury.1  And  in  England,  pictures  and  in- 
scriptions were  resorted  to  as  evidence  to  prove  pedigree,  for  want 
of  better  identification.*  And  more  recently  the  pictures  of  the 
living  and  the  dead  have  been  used  in  the  courts  of  this  country  as 
evidence,  when  the  original  could  not  be  produced  in  court ;  but  it 
is  resorted  to  as  secondary  evidence,  and  must  be  brought  within  the 
rule  admitting  secondary  evidence.3  They  have  been  used  in  cases 
of  bigamy,  to  identify  the  first  husband  of  the  defendant.4  Two 
photographs  of  a  child  were  exhibited  to  show  state  of  health  before 
and  after  neglect  and  ill-treatment.5  And  in  an  action  on  a  life  in- 
surance policy,  to  show  the  state  of  health  of  the  insured  and  de- 
ceased a  week  before  filing  the  application.6  And  in  a  murder  case 
where  the  deceased  was  killed  for  the  purpose  of  collecting  his  life 
insurance.7  In  all  such  cases  it  must  be  shown  that  the  photograph 
is  a  good  likeness  of  the  original ;  but  it  was  held  in  Alabama,  that 
such  proof  might  be  made  by  the  subject,  if  living,  though  he  be  a 
non-expert.8  And  they  are  now  being  used  to  test  the  genuineness 
of  handwritings  and  signatures  to  documents  for  the  purpose  of 
identifying  them,9  and  for  the  copying  and  identification  of 
records.10 

Personal  identity  by  the  voice  —  when  admissible. 

§  13.  Persons  may  be,  and  have  been  identified  by  the  voice ;  as 
in  Massachusetts  on  the  trial  of  a  party  for  burglary,  two  witnesses 
swore  positively  to  the  identity  of  the  accused,  by  his  voice  alone, 
and  he  was  convicted,  and  it  was  sustained,  on  writ  of  error.11  But 
where,  in  New  York,  the  prisoner  was  indicted  for  the  murder  of 

1  Shook  v.  Pate,  50  Ala.  91;  Stuart  v.  s  Cowley  v.   People,   83    N.   T.   464 

Binsse,  10  Bosw.  (N.  Y.)  436;  Wood  v.  (1881). 

Willard,  36  Vt.  82;  Vilas  v.  Reynolds,  •  Schaible  v.  Life  Ins.  Co.,  9  Phila. 

6  Wis.  214;  Jones  v.  Tarleton,  9  M.  &  Rep.  136. 

W.  675;  Reg.  v.  Fursey,  6  Carr.  &  P.  '  Udderzook  v.  Com.,  76  Pa.  St.  340. 

84;    Blair  v.   Pelham,    118   Mass.   420;  And  see  State  v.  Vincent,  24  Iowa,  570. 

Gavigan  v.  State,  55  Miss.  533.  8  Barnes  v.  Ingalls,  39  Ala.  193. 

*  Cimoys Peerage  case,  6  Clark  &  F.  »  Beavers  v.  State,  58  Ind.  530,  535; 

801  (1839).  Matter  of  Foster's  Will,  34  Mich.  21. 

»  Ruloff  v.  People,  45  N.  Y.  213.  10  Leathers  v.   Salvor  Wrecking  Co., 

4  Reg.  v.  Tolson,  4  Post.  &  Fin.  103  2  Wood  C.  C.  680. 

0864).  11  Coin.  v.  Williams,  105  Mass.  63. 


INTRODUCTION.  9 

his  wife,  a  witness  said  he  heard  cries  from  the  house  of  the  prisoner, 
he  was  permitted  to  testify  as  to  the  nature  of  the  cries,  whether  for 
joy  or  grief;  this  was  held  to  be  error.1  An  Alabama  case,  not  in 
the  official  reports,  as  it  did  not  go  to  the  court  of  last  resort,  but 
appeared  in  a  law  journal,  presents  a  question  of  some  interest  on 
this  branch  of  the  subject.2  .  While  evidence  of  identity  by  merely 
hearing  the  voice,  may  not  be  the  most  reliable,  it  has  been  often 
received. 

Same  —  rule  in  Texas — arson — and  Massachusetts  —  attempt  at 
arson. 

§  14.  In  a  Texas  case  on  an  indictment  for  arson  in  the  burning 
of  a  house  and  fences  in  the  night-time,  the  owner  hurried  to  the 
scene,  and  was  shot  at  by  the  accused,  he  returned  the  fire,  when 
he  heard  bitter  oaths  and  vociferations  emanating  from  the  accused, 
whose  voice  he  recognized  and  identified,  having  known  him  for 
thirteen  years  and  lived  within  half  a  mile  of  him  for  many  years. 
The  court  held  that  positive  recognition  of  the  defendant's  voice,  by 
one  who  was  familiar  with  it,  might  suffice  to  identify  the  guilty 
party.3  In  a  Massachusetts  case  the  accused  was  indicted  for  an  at- 
tempt at  arson  in  burning  a  house  belonging  to  one  Farnham,  whose 
wife  testified  that  she  heard  the  voice  of  the  accused  on  the  day  be- 
fore the  attempt  at  night,  had  heard  it  but  the  one  time,  and  again 
that  night,  and  recognized  it  and  could  identify  it.  This  was  held 
competent.4 

Dead  bodies  —  identification  thereof. 

§  15.  The  identity  of  the  deceased,  when  the  dead  body  is  found, 
either  mutilated  or  decomposed,  in  the  water  or  on  the  land,  often 
presents  the  most  perplexing  questions ;  and  these  arise  in  various 
forms.  And  the  identity  of  the  deceased  is  the  first  step  to  be  taken 
toward  the  proof  of  the  corpus  delicti,  which  must  be  proved  before 
any  conviction  can  be  had.  The  difficulty  and  uncertainty  in  making 
this  proof,  in  many  cases,  and  numerous  cases  of  mistaken  identity, 
seems  to  have  induced  the  legislature  of  New  York  to  enact  a  law 
on  the  subject,  which  statute  has  been  construed  by  the  court.5 
Where  a  dead  body  is  found  and  identified,  and  this  becomes  an 
important  question  on  the  trial  of  the  accused,  the  onus  is  then 

'  '  Messner  v.  People,  45  N.  Y.  1.  *  Com.  v.  Hayes,  138  Mass.  185  (1885). 

2  Southern  Law  Journal,  vol.  1,  page  B  People  v.  Palmer,  109  N.  Y.  110. 

395  (1880).  And  see  New  York  Penal  Code,  §  181. 
8  Davis  v.  State,  15  Tex.  App.  594. 

2 


10  THE  LAW  OF  IDENTIFICATION. 

thrown  upon  him  to  show  that  the  alleged  deceased  is  still  living,  L 
e.,  to  prove  an  alibi  of  the  alleged  deceased.1  This  question  in  this 
connection  arose  in  an  important  case  in  Texas.2  Where  the  dead 
body  is  decomposed  beyond  recognition,  the  identity  must  depend 
upon  other  circumstances  than  the  features  as  once  recognized.3  If 
nothing  but  the  body  is  found,  it  may  often  be  identified  by  peculiar 
marks,  with  corroborating  circumstances  which  lead  to  a  satisfactory 
conclusion  as  to  the  identification.4 

Same  —  body  when  burnt  or  drowned. 

§  16.  In  a  Mississippi  case,  where  the  face  of  the  deceased  had 
been  eaten  by  the  hogs,  the  body  was  very  readily  identified  by  his 
clothing  and  other  circumstances,  and  the  only  question  was  the 
identity  of  the  accused.5  In  a  North  Carolina  case,  the  body,  it  ap- 
peared, had  been  burnt,  and  nothing  was  found  except  a  few  bones, 
teeth  and  hair-pins,  etc.  These,  with  other  circumstances,  identified 
the  remains,  and  also  the  accused  as  the  perpetrator  of  the  crime.6 
The  greatest  difficulty  arises,  perhaps,  in  identifying  a  dead  body 
found  in  the  water,  whether  it  was  drowned,  or  thrown  into  the  water 
after  death.  The  most  scientific  experts  may  fail  to  determine  the 
real  cause  of  the  death.7 

Same  — identification  of  dead  body  by  the  teeth. 

§  17.  We  often  complain  of  decayed  teeth,  and  resort  to  the  den- 
tist. But  it  seems  from  observation  and  scientific  tests,  that  after 
death,  when  the  human  remains  have  mingled  with  the  dust,  or  been 
consumed  by  fire,  the  teeth  remain,  and  may  be  identified,  and  the 
dentist  may  recognize  and  identify  his  work  on  the  teeth,  performed 
in  the  life-time  of  the  subject.8  And  what  is  remarkable,  this  rule 
holds  good  in  the  case  of  artificial  teeth;  as  it  appeared  in  one  case, 
eleven  years  after  burial,  the  body  was  identified  by  the  artificial 
teeth  which  had  been  fully  described  before  exhumation.9  In  an 
English  case,  after  the  body  had  been  buried  twenty-three  years,  the 
wife  of  the  deceased  identified  it  by  some  peculiarity  of  the  teeth, 

1  State  v.  Vincent,  24  Iowa,  570.  «  State  v.  Williams,  7  Jones  L.  (N.  C.) 

4  Hamby  v.  State,  86  Tex.  528.  446.     And  see  Webster's  case,  supra. 

8  Wbarton  &  Stille  Med.  Jur.,  vol.  3,  7  Wharton  Cr.  Ev.  (8th  ed.),  §  804, 

§§  885,  391.  note. 

4  Rex  v.  Clewes,  4  Carr.  &  P.  221.  And  8  Webster's  case,  Bemis'  Rep.  80,  84, 

Bee  Webster's  case,  Bemis'  Rep.  80,  84,  85,  87;  State  v.  Williams,  7  Jones  (N. 

85,  87.  C.),  446. 

8  McCann  v.  State,  18  S.  &  M.  (Miss.)  »  Wbart.  Cr.  Ev.  (8th  ed.),  §  805,  note; 

472,  478.  Rex  v.  Clewes,  4  Carr.  &  P.  221, 


INTRODUCTION.  11 

which  remained  sound  during  that  long  period.1  A  dead  body  in 
New  York  was  identified,  six  months  after  death,  by  the  testimony 
of  a  dentist,  by  a  peculiarity  of  the  teeth.2  It  appeared  from  the 
examination  and  statement  of  experts,  in  an  English  case  involving 
the  question  of  identity,  that  the  age  of  a  person  may  be  ascertained 
quite  accurately  by  a  careful  examination  of  the  teeth.3  As  to  the 
"wisdom  teeth,"  COCKBUEN,  C.  J.,  in  the  Tichborne  case,  is  quoted 
as  saying :  "  they  are  last  to  come  and  first  to  go." 

Land  — identified  by  deed  —  rule  as  to. 

§  18.  Where  real  estate  is  conveyed  by  deed,  the  boundaries  given 
therein  identify  the  particular  piece,  parcel  or  tract  intended  to  be 
conveyed.  And  it  may  be  identified  by  name,  by  number,  by  known 
monuments  or  by  metes  and  bounds,  and  where  there  are  two 
descriptions  in  the  deed,  one  of  which  is  general,  and  the  other  par- 
ticular, and  the  latter  is  incorrect,  it  maybe  rejected  as  surplusage,  if 
enough  remains  to  pass  the  title.4  The  description  may  as  well  be  by 
monuments  as  by  any  other  identification,  and  where  there  are  two 
separate  and  distinct  descriptions  given  in  the  deed  of  conveyance 
for  greater  certainty,  one  by  monuments,  such  as  stakes,  trees,  rocks 
or  stones,  and  the  other  by  courses  and  distances,  and  they  are  con- 
tradictory, conflicting  or  irreconcilable,  the  courses  and  distances 
must  yield  to  the  monuments.5 

Bealty  — bounded  on  a  pond — ditch  cut  on  land. 

§  19.  It  was  held  in  New  York  that  where  a  land-owner,  through 
whose  land  a  stream  ran,  cut  a  ditch  and  changed  the  course  of  the 
stream,  and  subsequently  sold  to  another  the  land  through  which  the 
natural  channel  ran,  and  upon  which  the  burden  of  the  stream  was 
cast,  the  vendee  holds  it  according  to  its  changed  condition,  with 
such  burden  on  it.6  In  Massachusetts  a  deed  described  the  land  as 
bounded  by  a  pond  ;  it  was  found  that  the  pond  was  a  natural  one} 
and  raised  more  or  less  at  different  times  by  a  dam  existing  at  the 
date  of  the  deed ;  being  thus  ambiguous,  parol  evidence  was  admis- 
sible to  prove  an  agreement  as  to  the  boundary  of  the  pond.7 

1  Rex  v.  Clewes,  4  Carr.  &  P.  221.  Smith  v.  Strong,  14  Pick.  128;  Mason 

9  Linsday  v.  People,  63  N.  Y.  143.  v.  White,  11  Barb.  173. 

8  Whart.  &  Stille  Med.  Jur.,  §  632.  5  Washb.   Real  Prop.    (5th  ed.)  427; 

4  Mosley  v.  Massey,  8  East,  149;  Rum-  Frost  v.  Spauldin^,  19  Pick.  445;  Davis 

bold  v.  Rumbold,  3  Ves.  Jr.  65;  Hull  v.  v.  Rainsford,  17  Mass.  209. 
Fuller,  7  Vt.  100;  Lyman  v.  Loomis,  5        6  Roberts  v.  Roberts,  55  N.  Y.  275. 
N.  H.  408;  Jackson  v.  Moore,  6  Cow.        T  Waterman  v.  Johnson,  13  Pick.  261. 
702;    Bott  v.   Burnell,   11    Mass.   163; 


*  4 

12  THE  LAW  OF  IDENTIFICATION. 

Same  —  bounded  on  river  —  not  navigable  —  general  rule. 

§  20.  Where  land  is  described  as  bounded  by  a  river  on  one  side, 
which  river  is  not  navigable,  and  the  line  ran  to  the  bank  thereof, 
and  by  and  along  said  stream  or  bank,  it  extends  to  the  middle  or 
center  of  the  stream,  unless  it  is  otherwise  specially  provided  in  the 
deed  or  description.1  The  rule  of  construction  of  all  deeds  of  con- 
veyance is  to  ascertain,  if  possible,  the  intent  and  meaning  of  the 
parties,  and  give  it  effect  if  it  can  be  done  without  violating  the  rec- 
ognized rule  of  law.2  It  is  held  that  what  the  boundaries  of  land 
are  is  a  question  of  law,  but  where  the  boundaries  of  the  land  are 
is  a  question  of  fact  for  the  jury,  and  parol  testimony  is  always 
admissible.3 

When  river  the  dividing  line. 

§  21.  Where  a  fresh- water  river  is  made  the  dividing  line  between 
two  riparian  possessors,  the  middle  or  center  of  the  stream  is  the 
lineal  partition,  i.  0.,  each  one  owns  to  the  middle  or  center  of  the 
stream,  in  the  absence  of  some  terms  expressing  a  different  intent.4 
Not  only  is  this  true,  but  where  the  riparian  owner  possesses  lands 
on  both  sides  of  such  a  stream,  he  owns  the  stream  co-extensive  with 
the  boundaries  of  his  land,  and  he  may  convey  the  stream  without 
the  soil,  or  the  soil  without  the  stream,  by  express  grant.  But  if 
he  sells  the  land  on  one  side  of  such  stream,  his  grantee  will  take  to 
the  center  of  the  stream,  in  the  absence  of  some  expression  indicating 
a  contrary  intention  in  the  grant.5  Where  A.  sold  to  B.  one  hun- 
dred and  sixty  acres,  part  of  a  large  tract  of  land,  with  no  further 
or  better  description  than  this,  it  was  held  that  the  grantee  had  the 
right  to  locate  that  quantity  in  any  part  of  the  tract  he  saw  proper, 
upon  the  principle  that  a  conveyance  must  pass  an  interest,  if  such 
effect  can  consistently  and  legally  be  given  to  it,  and  if  uncertain 
and  ambiguous,  it  must  receive  a  construction  most  strongly  against 
the  grantor  therein.6 

Requisites  —  description  —  tax  deed  —  construction. 

§  22.  Where  land  was  described  in  a  deed,  called  for  an  old  line 
"  from  A.  down  the  bottom  with  Hill's  line  to  a  forked  white  oak," 

1  Yates  v.  Judd,  18  Wis.  128;  Comrs.  8  Peyton  v.  Ayres,  2  Md.  Ch.  Rep.  64; 

v.  Kempshall,  26  Wend.  404;  Hatch  v.  Haraner  v.  Smith,  22  Ala.  433. 

Dwight,    17    Mass.    289;    Morrison    v.  8  Abbott  v.  Abbott,  51  Me.  581. 

Keen,  8  Me.  474;  Morgan  v.  Reading,  8  4  Muller  v.  Landa,  31  Tex.  265. 

S.  &  M.  (Miss.)  366;  State  v.  Oilmanton,  »  Knight  v.  Wilder,  2  Gush.  199. 

9  N.  H.  461;  Arnold  v.  Elmore,  16  Wis.  «  Wofford  v.  McKinna,  23  Tex.  45. 
586;  Browne  v.  Kennedy,  5  Harr.  &  J. 
195;  People  v.  Platt,  17  Johns.  195. 


INTRODUCTION.  13 

and  it  was  uncertain  what  bottom  was  meant,  the  question  of  iden- 
tity was  one  of  fact  for  the  jury.1  Where  taxable  land  was  de- 
scribed by  saying  "  Cooper,  James,  5  acres,  section  24,  T.  4,  F.  R. 
1,"  and  sold  by  such  description  for  taxes,  the  deed  was  void  for 
want  of  identity.2  In  the  sale  of  land  for  taxes,  the  validity  of  the 
deed  depends  upon  a  compliance  with  the  statute,  and  a  defective  de- 
scription of  land  in  the  assessment  cannot  be  cured  by  the  tax  deed.3 
A  deed  should  be  construed  with  reference  to  the  state  of  the  prop- 
erty in  its  then  condition,  as  the  parties  are  presumed  to  have  sa 
intended  to  refer.4 

Personal  property  —  necessity  for  identification. 

§  23.  Having  noticed  a  few  of  the  points  involved  in  the  identifi- 
cation of  real  property,  let  us  give  a  passing  notice,  in  this  brief  in- 
troduction, to  the  necessity  for,  and  the  means  of  identifying  personal 
property ;  this  is  sometimes  almost  as  difficult  as  the  question  of  per- 
sonal identity.  In  chattel  mortgages  and  deeds  of  trust  or  bills  of 
sale,  the  property  should  be  sufficiently  described  and  identified  as 
to  make  the  record  thereof  a  notice  to  third  persons  who  may  desire 
to  deal  with  the  grantor  in  relation  thereto ;  that  he  may  know  what 
specific  property  was  conveyed,  this  for  the  protection  of  the  mort- 
gagee, and  if  he  neglects  to  look  to  it,  he  does  so  at  his  peril.  His 
security,  intended  to  be  afforded  by  the  conveyance,  often  depends 
upon  the  proper  identification  of  the  property,  as  much  so  as  though 
it  was  real  estate.  But  it  is  said  that  "  where  the  description  in  a 
chattel  mortgage  is  correct  as  far  as  it  goes,  but  fails  fully  to  point 
out  and  identify  the  property  intended  to  be  covered,  a  subsequent 
purchaser  or  incumbrancer  is  bound  to  make  every  inquiry  which 
the  instrument  itself  could  be  deemed  reasonably  to  suggest."5  This 
rule  is  general ;  it  may  protect  the  mortgagee,  if  it  is  sufficient  to 
put  intended  purchasers  upon  their  inquiry,  for  if  they  then  fail  to 
inquire,  they  are  charged  with  such  information  as  the  inquiry  would 
have  elicited. 

Description  —  mules  —  horses  —  oxen. 

§  24.  Where  the  mortgage  described  the  property  as  u  one  black 
mule  about  eight  years  old,"  it  was  held  that  these  words  were  not 
so  general  and  indefinite  as  to  render  it  void ,  or  to  exclude  it  as  evi- 

1  Baynard  v.  Eddings,  '2  Strobh.  (S.  *  Turney  v.  Yeoman,  16  Ohio,  24. 
C.)  374.  4  Adams  v.  Frothingliam,  3  Mass.  352. 

2  Raymond  v.   Longworth,    14  How.  5  Yant  v.  Harvey,  55  Iowa,  421. 
(U.  S.)  76, 


14  THE  LAW  OF  IDENTIFICATION. 

dence  when  properly  recorded.1  Where  the  mortgage  attempted  to 
convey  a  mare,  and  described  her  as  having  "four  white  legs," 
when  in  fact  she  had  but  one  white  foot  to  the  pastern  joint,  and  a 
little  white  on  another  foot,  it  was  held  insufficient  to  identify  the 
mare.2  In  Michigan,  a  chattel  mortgage  described  the  property  as 
all  the  cattle,  etc.,  consisting  of  two  yoke,  aged  six  and  seven  years, 
color  "red,  white  and  blue."  This  was  held  sufficient,  and  that  it 
was  not  necessary  that  each  one  should  be  "  red,  white  and  blue."3 
"Where  the  mortgage  described  the  property  as  a  black  mare  mule, 
and  the  witness  said  a  "  mouse-colored  mare  mule,"  it  was  held  that 
the  variance  was  too  slight  to  be  fatal.4 

Animals  described  —  chattel  mortgage  —  sufficiency. 

§  25.  A  chattel  mortgage  attempted  to  convey  among  other  things 
"  three  four-year  old  horses  "  and  described  as  being  in  the  possession 
of  the  mortgagor.  The  court  held  it  to  be  a  general  rule,  that  if  the 
description  of  the  property  is  sufficient  when  it,  aided  by  inquiry 
which  the  instrument  suggests,  will  identify  the  property.5  Where 
the  mortgage  conveying  cattle  described  them  incorrectly  as  to  their 
ages,  and  the  evidence  showed  what  cattle  were  intended  to  be  con- 
veyed, it  was  not  void  where  the  party  claiming  in  opposition  to  the 
mortgage  was  not  misled  by  the  erroneous  description,  and  could 
not  have  been,  in  the  exercise  of  ordinary  care.6  A  mortgagee 
brought  suit  to  recover  two  mules,  describing  them  as  "  two  brown 
female  mules."  The  answer  set  up  that  the  only  claim  plaintiff  had 
was  founded  on  a  mortgage  conveying  "  two  mule  colts,  one  year  old 
next  spring,"  no  other  description  given.  It  was  held  sufficient,  and 
that  any  description  which  would  enable  third  persons,  aided  by 
inquiries  which  the  instrument  indicates,  to  identify  the  property  was 
sufficient.7 

Animals  and  other  personalty. 

§  26.  Action  was  brought  to  recover  possession  of  "  one  bay  mare, 
one  hind  foot  white,  and  white  spot  in  face,  branded  *  G  '  17 
hands  high,  five  years  old,  formerly  the  property  of  John  Hamer- 
berg."  This  was  partially  untrue,  as  the  mare  was  branded  "  J"  in- 
stead of  "  G  "  and  15|  hands  high,  instead  of  "  17,"  yet  it  was  held 

1  Connally  v.  Spragins,  66  Ala.  258.  •  Tolbert  v.  Horton,  33  Minn.  104. 

*  Rowley  v.Bartholemew,37  Iowa,374.  6  Harris  v.  Kennedy,  48  Wis.  500. 

8  Fordyce  v.  Neal,  40  Mich.  705.  7  Tindall    v.    Wasson,   74    Ind.   495; 

4  TompkSns  v.  Henderson  &  Co.,  83  Smith  v.  McLean,  24  Iowa,  322. 
Ala.  891. 


INTRODUCTION.  15 

valid,  as  it  applied  to  the  mare  in  so  many  particulars,  and  did  not 
apply  to  any  other  animal.  Where  the  chattel  mortgage  described 
the  property  as,  "  one  bay  mare,  one  cow,  one  chaise  and  harness, 
one  sleigh,  robes  and  harness,  one  saddle  and  bridle,  all  the  farming 
tools  and  other  personal  property  in  and  about  the  barn  and  premises 
at  Herbert  Hall ;  all  the  furniture,  and  all  the  articles  of  personal 
property  in  and  about  Herbert  Hall  so  called,"  a  family  carriage 
belonging  to  the  grantor  and  on  the  premises  was  held  to  pass  by  the 
mortgage,  under  the  above  description,  as  being  sufficiently  identified.1 
In  Michigan,  a  mortgage  conveying  a  bull,  described  him  as,  "  one 
Durham  bull  known  as  the  Gramalls  bull,  said  bull  is  four  years  old, 
and  weighs  2,400  pounds."  COOLEY,  Ch.  J.,  was  of  opinion  that  the 
bull  was  sufficiently  identified.2 

Description  —  what  to  include  —  uncertainty. 

§  27.  Where  a  stock  of  goods  was  mortgaged,  and  described  as 
"  the  goods  and  chattels  now  in  my  store  in  Brunswick,  a  schedule 
of  which  is  hereto  annexed,5'  and  dated  Dec.  29,  1868,  defendant 
claimed  under  a  prior  mortgage  of  August  8,  1864.  The  above  de- 
scription, however,  was  in  the  defendant's  mortgage,  and  was  held 
sufficient  to  cover  the  goods.3  Where  the  lease  of  a  store  building 
made  the  rent  a  lien  on  "  any  and  all  goods,  wares  and  merchandise 
therein  or  thereafter  to  be  put  in,  on  or  about  the  building,"  it  was 
held  not  to  include  teams  and  wagons  used  by  the  lessee  in  deliver- 
ing goods  to  customers,  nor  notes  and  accounts  due  him  and  kept  in 
the  building.4  A  mortgage  upon  a  stated  quantity  of  mixed  logs  in 
the  drove  was  held  void  for  uncertainty,  as  against  the  rights  of  third 
parties,  if  it  does  not  furnish  a  data  for  separating  them  from  the 
mass.5 

Same  —  when  valid —  false  description. 

§  28.  Where  the  mortgaged  property  was  described  as  "  one  four- 
horse  iron-axle  wagon,"  it  was  held  insufficient  as  against  subsequent 
purchasers  or  incumbrancers.6  Where  a  mortgage  conveyed  "all 
the  staves  I  have  in  Monterey,  the  same  I  had  of  Moses  Fargo." 
He  had  no  staves  in  Monterey,  but  had  staves  in  Sandisfield  township 
adjoining  Monterey,  which  he  "  had  "  of  Moses  Fargo.  Held  suffi- 

1  Goulding  v.  Swett,  13  Gray,  517.  And  see  Vawter  v.  Griffin,  40  Ind.  593. 

2  Willey  v.  Snyder,  34  Mich.  60.  -  Richardson  v.  Lumber  Co.,  40  Mich. 

3  Partridge  v.  White,  59  Me.  564.  303. 

4  Van  Patten  v.  Leonard,  55  Iowa,  520.        6  Nicholson  v.  Karpe,  58  Miss.  34. 


16  THE  LAW  OF  IDENTIFICATION. 

ciently  identified.1  A  mortgage  was  held  valid,  conveying  "  all  and 
singular  the  stock  and  chattels  belonging  to  him,  in  and  about  the 
wheelwright  shop  occupied  by  him."2  Where  property  is  sufficiently 
described  by  the  terms  used  in  the  instrument,  a  false  mention  of 
some  particulars,  as  to  the  intention  of  the  parties,  will  not  defeat 
the  mortgage ;  it  may  be  rejected  as  surplusage.3  And  this  is  the 
rule  we  have  seen  laid  down  in  the  identification  of  real  estate  in 
case  of  two  descriptions,  one  general,  the  other  particular ;  if  the 
latter  be  erroneous,  it  may  be  rejected,  if  enough  remains  of  the 
former  to  uphold  and  validate  the  instrument,  and  pass  the  title ; 
and  there  seems  to  be  no  valid  reason  why  the  same  rule  should  not 
apply  to  personalty. 

Stolen  property  —  identity  of —  marks  and  brands. 

§  29.  Having  noticed  briefly  a  few  points  relative  to  the  identifi- 
cation of  personal  property  when  conveyed  by  chattel  mortgage  or 
deed  of  trust,  which  is  controlled  mainly  by  the  instrument  itself, 
we  may,  in  this  introductory  chapter,  take  a  hasty  glance  at  the 
identity  of  personal  property,  where  it  is  in  dispute,  as  the  subject  of 
larceny,  robbery  or  burglary.  And  first,  as  to  larceny ;  in  which 
case,  as  in  all  crimes  and  misdemeanors,  the  corpus  delicti  must  be 
first  proved,  and  herein,  the  owner,  and  the  identity  of  the  property 
alleged  to  have  been  stolen.  When  cattle  are  stolen,  they  may  be 
identified  in  various  ways,  but  in  a  cattle-raising  country,  often  by 
marks  or  brands.  In  an  indictment  for  stealing  a  ubeef  steer,"  the 
unrecorded  marks  were  competent  evidence  in  proof  of  identity  and 
ownership.4  And  for  stealing  a  "  steer  "  which  was  identified  by  the 
brand,  evidence  showing  the  character  and  description  of  the  brand 
was  competent,  though  not  recorded.  In  one  case  in  Texas,  under 
indictment  for  stealing  a  hog,  the  case  was  complicated  by  the  neces- 
sity of  identifying  both  prisoner  and  hog.5 

Same  —  cattle,  etc.  —  rule  in  Texas  and  North  Carolina. 

§  30.  An  indictment  charged  the  accused  with  stealing  a  cow,  the 
property  of  one  E.  N.  Wilson.  But  the  proof  showed  that  the  cow 
was  taken  from  the  possession  of  one  Fernandez,  in  charge  of  Wil- 
son's ranch.  This  was  held  to  be  a  fatal  variance.6  In  another 

1  Pettis  v.  Kellogg,  7  Cash.  456.  *  Johnson  v.  State,  1  Tex.  App.  333. 

1  Harding  v.  Coburn,  12  Mete.  333.  5  Kelly  v.  State,  1  Tex.  App.  628. 

•  Bryan  v.  Faucett,  65  N.  C.  650.  •  Alexander  v.  State,  24  Tex.  App.  136. 


INTRODUCTION.  17 

Texas  case,  for  stealing  a  cow,  the  difficulty  arose  in  the  identifica- 
tion of  the  accused.  When  the  owner  missed  the  cow,  he  found 
the  skin  on  premises  occupied  by  several  parties  as  tenants,  and  it 
remained  in  doubt  who  did  the  stealing,  and  there  could  be,  of 
course,  no  conviction.1  One  Bishop  was  indicted  in  North  Carolina 
for  stealing  a  leather  trunk,  containing,  among  other  things,  a  new 
fifty  dollar  bill,  on  a  certain  bank ;  about  two  months  thereafter,  the 
prisoner  exchanged  such  a  bill  on  the  same  bank  to  one  Charles, 
cautioning  him  (Charles)  not  to  use  his  name  in  relation  to  the  bill. 
The  prisoner  being  usually  destitute  of  money  he  was  convicted, 
upon  this  circumstance  of  the  identity  of  the  money.2 

Money  —  cask  —  proof —  production  —  identity. 

§  31.  In  an  indictment  for  the  larceny  of  paper  money,  the  actual 
production  of  the  money  in  court  is  often  dispensed  with,  and  nee 
essarily  so,  because,  in  many  cases,  it  may  have  passed  through  many 
hands,  been  deposited  in  banks  or  remitted  elsewhere,  and  lost  sight 
of,  so  as  to  render  its  identity  impossible,  while  the  circumstances 
of  the  theft  point  unerringly  to  the  accused.  As,  for  instance,  the 
fact  of  the  accused  having  and  using  larger  sums  of  money,  such  as 
was  lost,  immediately,  or  soon  after  the  larceny,  whereas,  before  that 
time,  he  had  been  in  adverse  circumstances  —  destitute  of  money  — 
hopelessly  insolvent,  and  wrecked  upon  the  reef  of  impecuniosity.3 
But  these  circumstances  may  not  be  sufficient,  as  circumstantial  evi- 
dence, because  they  may  not  exclude  every  other  hypothesis.  As  to  the 
larceny  of  goods  alleged  to  have  been  stolen,  there  may  be  mistake 
in  their  identity,  as  well  as  in  the  identity  of  persons.  A  respectable 
farmer  in  England  was  indicted  for  the  larceny  of  a  pair  of  sheets  and 
a  cask,  proved  to  be  the  property  of  the  prosecutor,  by  marks  thereon; 
as  to  the  cask,  it  was  marked  "  P.  C.  84,"  but  they  both  had  casks 
with  the  same  mark,  and  there  could  be  no  conviction.4 

Larceny  —  requisites  —  identity  of  owner  and  goods. 

§  32.  In  all  indictments  for  larceny,  it  must  be  shown  that  the 
goods  were  lost,  the  name  of  the  owner  must  be  proved  as  laid  in  the 
indictment,  then  there  remain  two  important  questions  —  the  identity 
of  the  goods  and  of  the  accused.5  And  so  if  a  party  is  indicted  for 
stealing  a  "  black  horse,"  he  cannot  be  convicted  if  the  evidence 

1  Curry  v.  Slate,  7  Tex.  App.  267.  4  1  Wills  Circum.  Ev.  128. 

2  State  v.  Bishop,  73  N.  C.  44.  5  State  v.  Somerville,  21  Me.  14;   Rob- 
8  Com.  v.  Montgomery,  11  Mete.  534;    inson  v.  State,  1  Kelly  (Ga.),  563. 

Burrill  Circum.  Ev.  658. 

3 


18  THE  LAW  OF  IDENTIFICATION. 

upon  the  trial  clearly  shows  that  it  was  "  a  horse  of  another  color."1 
And  where  the  indictment  charged  the  defendant  with  stealing  nine- 
teen shillings  in  money,  it  was  not  supported  by  proof  that  he  stole 
a  sovereign  in  gold.2  The  variance  between  the  allegation  and  the 
proof  is  fatal,  wherever  it  fails  to  identify  the  property  as  laid  in 
the  indictment.  And  the  goods  or  property  must  be  shown  to  be 
those  of  the  owner  as  it  is  alleged.  He  must  have  an  absolute  or 
special  property  in  them.3  Otherwise  it  is  generally  held  that  there 
can  be  no  conviction. 

Portable  goods  brought  into  court  for  identification. 

§  33.  A  junk  dealer  in  Illinois  was  tried  for  receiving  stolen  goods, 
knowing  them  to  be  such;  the  articles  were  twelve  "  brass  couplings," 
belonging  to  a  railroad  company,  used  for  coupling  engine  hose. 
The  court  permitted  them  to  be  brought  in  and  examined  before  the 
jury.  He  was  convicted,  but  it  was  reversed,  because  the  case  as 
made,  though  prima  facie,  was  not  conclusive.4  It  is  generally  per- 
mitted in  this  country  and  in  England  to  permit  portable  goods  and 
property  to  be  brought  into  court  for  identification,  both  in  civil  and 
criminal  practice,  where  it  is  safe  and  convenient  to  do  so  —  such  as 
burglar's  tools  used  in  his  trade  ;  or  weapons  used  by  a  murderer  ;5 
or  children  in  cases  of  bastardy.6  And  where  a  party  was  sued  for 
the  detention  of  a  dog,  and  after  other  witnesses  had  been  called^ 
plaintiff  was  permitted  to  call  the  dog.1  Another  dog  came  into 
court  in  an  English  case,  in  which  it  was  alleged  that  the  defendant 
kept  a  vicious  and  mischievous,  biting  dog;  and  he  was  permitted 
to  bring  the  dog  into  court,  that  the  jury  might  see  that  "  he  was 
gentle,  he  was  kind,"  and  in  all  things  free  from  vice ;  this  was  held 
correct.8 

Burglary  —  larceny  by  millers  —  adulteration. 

§  34.  On  the  trial  of  an  indictment  for  burglary  in  New  York, 
among  other  property  taken  was  a  box  of  goods,  which  were  re- 
covered in  the  express  office  in  Boston.  The  box  and  contents  were 
produced  in  evidence  and  identified.9  We  find  two  cases  of  larceny 
by  millers  —  one  in  England,10  and  the  other  in  Massachusetts." 

1  28tarkieEv.l531.  7  Lewis  v.  Hartley,  7   Carr.  &  P.  405. 

s  2  Archbold  PI.  and  Ev.  22b.  8  Line    v.    Taylor,    3    Post.  &    Fin. 

8  2  Archbold  Cr.  PI.  and  Ev.  342.  731. 

4  Japitz  v.  People,  34  111.  516.  9  Foster  v.  People,  63  N.  Y.  619. 

»  Com.  v.  Webster,  5  Cash.  295.  10  Com.  v.  James,  1  Pick.  375. 
•  State  v.  Britt.  78  N.  C.  439;  Riak  v.         "  Rex  v.  Haynee,  4  Maule  &  S.  214. 
State,  19  Ind.  152. 


INTRODUCTION.  19 

In  each  case  it  was  charged  that  the  defendant  retained  part  of  the 
grist  and  adulterated  the  balance.  In  the  English  case  the  indict- 
ment was  held  to  be  bad  for  want  of  sufficient  identification.  In  the 
latter  case  the  identity  was  held  sufficient.  The  matters  referred  to 
in  this  brief  introductory  chapter  have  received  little  more  than  a 
mere  passing  notice.  Most  of  them  will  be  referred  to  in  their 
order,  and  be  more  fully  considered  hereafter. 


CHAPTER  II. 


IDENTIFICATION  OF  PERSONS. 


SEC. 

35.  Identified    by    the  voice — rule  in 

Texas  —  arson. 

36.  Same  —  rule  in  Massachusetts — at- 

tempt at  arson. 

37.  Recognition  by  the  voice  —  rule  in 

Massachusetts  and  New  York. 

38.  Recognition  by  the  voice  —  identity. 

39.  Identity  of  persons  and  things. 

40.  Dissimilarity  of  persons  —  proof  of 

identity  —  assurance. 

41.  Personal  identity  —  flash  of  a  gun  or 

pistol  in  the  dark. 

42.  Same  —  a  later  English  case  —  iden- 

tity. 

43.  Same — experiments  by   professors 

—  experts. 

44.  Memory    of    features  —  discrimina- 

tion. 

45.  Burglary  —  mistaken  identity. 

46.  Lost  child  —  marks  —  identity — ex- 

perts. 

47.  Comparison — identity  of  persons  and 

things. 

48.  Uncertainty  in  personal  identity. 

49.  Bigamy  —  identity   of    the    second 

wife. 

50.  Indictment  —  variance  —  divorce  — 

confrontation. 

51.  Action  to  enforce  specific  perform- 

ance —  heirship. 

52.  Ancestor — identity  of — claim  to  land. 

53.  Same  —  claim  to  land  —  identity  of 

name. 

54.  Name  —  identity  —  person  —  remote 

transaction.. 


SEC. 

55.  Bigamy  —  perjury  —  weight  of  evi- 

dence. 

56.  Name   in  deeds  —  presumption    of 

identity. 

57.  Instruments    of    crime  —  personal 

identity. 

58.  Size  of  the  person  to  be  identified. 

59.  Personal  appearance — peculiarities. 

60.  Instrument  used  by  criminal  —  iden- 

tity. 

61.  Impressions  made  by  the  teeth. 

62.  Bastardy  —  evidence   of  identity  — 

rule  in  Maine. 

63.  Same  —  rule  in  Indiana. 

64.  Seduction  —  administering  drugs. 

65.  Bastardy  —  criminal  conversation. 

66.  Legitimacy — bastardy — rulein North 

Carolina. 

67.  Bastardy  —  identity  —  rule  of  evi- 

dence. 

68.  Bank  check  —  false  representation 

—  risk. 

69.  Retailing    and    larceny  —  personal 

identity. 

70.  Circumstantial  evidence  of  personal 

identity. 

71.  Larceny  of  a  package  of  money  — 

identity  of  the  thief. 

72.  Fictitious  appeal  bond — indictment. 

73.  Rape — identity  of  accused — clothes. 

74.  Threat  to  take  life  —  verdict. 

75.  Circumstantial  evidence  of  identity. 

76.  Personal  appearance  —  human  iden- 

tity —  evidence. 


Identified  by  the  voice  —  rule  in  Texas  —  arson. 

§  35.  In  a  case  of  arson  in  Texas  it  was  held  that  positive  recogni- 
tion of  the  defendant's  voice,  by  one  who  was  familiar  with  it,  might 
suffice  to  identify  the  guilty  party.  H.  Smith  testified  that  he  was  in 
his  house  about  nine  o'clock  at  night  of  February  19, 1883,  when  he 
discovered  that  a  vacant  house  on  his  farm,  about  four  hundred  yards 
from  his  own  residence,  was  on  fire.  He  sent  two  negroes  to  extin- 
guish the  fire,  but  having  failed,  they  returned.  He  then  discovered 
that  two  sides  of  his  field  fence  were  on  fire,  and  heard  guns  firing  in 
the  field.  He  took  his  gun  and  went  to  the  field,  passed  the  burniog 


IDENTIFICATION  OF  PERSONS.  21 

house,  when  some  one  fired  on  him ;  he  returned  the  fire,  shooting 
three  times;  the  other  party  fired  five  or  six  times.  Smith  saw  no 
one,  but  heard  the  voice  of  Phil.  Davis,  saying :  "  Try  it  again,  G — d 

d n  you."     He  had  known  defendant  for  thirteen  years,  and 

lived  half  a  mile  from  him  for  many  years,  and  knew  his  voice,  to 
which  he  swore  positively.  Former  difficulties  between  the  parties 
were  also  in  proof.1 

Same  —  rule  in  Massachusetts. 

§  36.  On  the  trial  of  a  case  for  an  attempt  at  arson,  the  defend- 
ant was  identified  by  his  voice,  and  by  a  witness  who  had  heard  him 
speak  only  once  before  the  alleged  crime.  Mrs.  Farnham  testified  that 
on  February  6,  1884,  a  man  drove  into  her  yard  in  a  sleigh,  and 
asked,  "  Does  Mr.  Farnham  live  here,"  and  she  replied  "  yes,  but  he 
is  not  at  home ;  "  then  he  said,  "  well,  he  lives  here,  don't  he,"  and 
drove  away ;  that  his  voice  was  coarse,  gruff,  and  very  ugly ;  that 
on  the  night  of  the  same  day,  about  ten  o'clock,  a  horse  and  buggy 
was  driven  up  to  the  same  house  and  turned  round  in  the  yard  and 
stopped  opposite  an  open  shed,  the  buggy  being  twenty-nine  feet 
from  the  door  of  the  kitchen  of  the  house  when  it  stopped ;  she  was 
attracted  by  the  noise  and  called  the  attention  of  her  husband  and  ser- 
vant, one  Bohan.  One  man  remained  in  the  buggy,  and  she  went  to 
the  door  and  said  twice,  "  who  is  there,"  and  the  man  said,  "  what  do 
you  think  it  is,''  and  she  identified  him  from  his  voice,  as  the  same 
man  who  came  in  the  sleigh  and  spoke  to  her  on  that  day.  The 
servant  testified  that  he  saw  a  man  come  from  the  direction  of  the 
shed  and  get  into  the  buggy  and  drive  off.  They  then  examined 
the  shed  and  found  in  it  a  cartridge  of  A.tlas  powder,  a  fuse  and  a 
bottle  of  kerosene,  and  he  was  convicted.2 

Recognition  by  the  voice  —  rule  in  Massachusetts  and  New  York. 

§  37.  On  a  trial  for  burglary  in  Massachusetts  in  1870,  two  wit- 
nesses testified  to  the  identity  of  a  burglar  from  his  voice  alone  ;  that, 
at  the  time  the  crime  was  committed,  they  recognized  one  of  the 
two  burglars  by  his  voice ;  that  they  had  heard  him  talk  but  once 
before.  The  defendant's  counsel  asked  the  court  to  rule  that  this 
identification  was  insufficient ;  the  judge  refused  this,  and  instructed 
the  jury  that  the  similarity  in  the  voice  was  a  circumstance  to  be 
considered  with  the  other  circumstances  in  the  case.  The  prose- 

1  Davis  v.  State,  15  Tex.  App.  594.  4  Com.  v.  Hayes,  138  Mass.  185. 


22  THE  LAW  OF  IDENTIFICATION. 

cutor,  Ball,  and  his  wife  testified  that  on  the  day  before  the  night 
of  the  burglary,  the  defendant,  whom  they  had  never  seen  before, 
called  at  their  house  and  talked  some  time  with  Ball ;  that  he  had  a 
very  interesting,  manly,  pleasant,  smooth,  gentle,  handsome  voice, 
like  that  of  one  born  in  this  country,  of  foreign  parents  ;  "  a  York 
State  voice ; "  that  between  eleven  and  twelve  o'clock  that  night 
they  were  awakened  by  a  noise  in  their  bed-room ;  that  a  man  at  the 
side  of  the  bed  said :  "  Keep  still,  or  you  are  a  dead  man  ;  if  you 
move,  I'll  take  your  heart's  blood  ;  now,  Bill,  work  fast,  take  all 
the  money  ;  you  at  the  window,  if  these  folks  move,  shoot  them ; " 
the  man  then  sprang  from  the  room  ;  that  they  could  not  see  him, 
but  identified  him  at  once,  by  his  voice,  as  the  defendant,  and  there 
were  two  men  engaged  in  the  burglary.  He  was  convicted,  and  the 
conviction  was  sustained.1  In  an  action  for  slander,  not  made  in 
direct  terms,  but  by  gestures,  expressions  and  intonations  of  voice, 
it  was  held  competent  for  the  witnesses  who  heard  the  expressions, 
to  state  what  they  understood  the  defendant  to  mean  by  them,  and 
to  whom  he  intended  to  apply  them.2  Upon  the  trial  of  a  prisoner 
for  the  murder  of  his  wife,  a  witness  for  the  State,  who  had  heard 
cries  from  the  house  of  the  prisoner  on  the  night  preceding  her 
death,  testified  to  that  fact ;  he  was  then  asked  and  permitted  to 
testify  what  these  cries  indicated  —  whether  the  person  was  crying 
from  joy  or  grief.  This  was  held  by  the  Supreme  Court  to  be  error 
in  the  court  below,  and  that  the  question  called  for  the  conjecture 
of  the  witness  as  to  the  cause  of  the  cries  which  he  had  heard,  and 
not  for  a  description  of  them.3 

Recognition  by  the  voice  —  identity. 

§  38.  An  article  by  A.  B.  McEachin,  of  Tuscaloosa,  Ala.,  1880, 
appeared  in  the  Southern  Law  Journal,  vol.  1,  p.  395,  upon  the 
voice  as  a  means  of  identity,  in  which,  among  other  things,  he  says  : 
"  We  are  all  endowed  with  the  faculty  of  distinguishing  sounds, 
but  some  are  gifted  with  much  keener  perceptions  in  acoustics 
than  others,  and  therefore  better  qualified  to  identify  articulate 
sounds ;  the  blind  man  cultivates  the  sense  of  hearing  to  the  highest 
possible  perfection,  and  yet  he  will  tell  you  that  the  familiar  foot- 
falls of  the  known  ones  are  a  more  unerring  guide  to  personal  iden- 
tity than  the  tones  of  the  voice,  which  are  ever  liable  to  change. 

1  Com.  v.  Williams,  105  Mass.  63.  2  Leonard  v.  Allen,  11  Gush.  341.  Cit- 

•Messner  v.  People,  45  N.  Y.  1.  ing  Goodrich   v.   Davis,  11  Mete.  484; 

Miller  v.  Butler,  6  Cash.  71. 


IDENTIFICATION  OF  PERSONS.  23 

Is  it  possible  that  he  who  is  about  to  commit  the  foul  crime  of  as- 
sassination upon  his  fellow  man  speaks  in  his  natural  tones  when 
about  his  fearful  work  ?  or  he  who  contemplates  a  midnight  deed  of 
violence  or  of  wrong,  uses  his  honest  voice  when  about  to  accom- 
plish his  guilty  purpose  ?  I  think  not.  Voices  in  distress  express 
suffering,  while  exclamations  of  surprise,  horror,  fear,  dread  and  the 
like  convey  to  the  listening  ear  the  emotions  that  are  moving  within, 
and  are  abnormal  and  unnatural  in  tone.  The  case  of  Harrison, 
12  State  Trials,  and  Brooks,  31  id.,  are  the  only  ones  I  have  found 
in  the  old  books,  which  turned  upon  the  voice  as  a  means  of  identi- 
fying criminals.  The  American  adjudications  in  point  are  unsatis- 
factory, for  the  reason  that  personal  identity  is  a  question  of  fact, 
and  the  courts  of  last  resort  are  rarely  troubled  with  such  disputa- 
tions. *  *  *  The  trial  of  Chaney,  who  was  charged  with 
killing  David  N.  Martin  in  Lauderdale  county,  this  State,  created 
great  excitement.  The  peculiar  report  of  Chaney's  rifle  was  one  of 
the  most  important  links  in  the  chain  of  evidence  against  him.  He 
was  sent  to  the  penitentiary  for  life.  The  case  is  reported  in  31 
Ala.,  but  the  facts  are  neither  narrated  or  reviewed.  The  case  of 
Rutillus  Rosser  *  *  *  turned  almost  entirely  upon  the 
voice.  The  parties  lived  near  together,  and  Rosser  was  a  fre- 
quent inmate  of  Phifer's  house.  Phifer  was  called  to  his  door  at 
night  and  shot  down  by  an  assassin  in  the  darkness.  Mrs.  Phifer 
testified  that  she  knew  the  voice  of  the  accused  well,  and  could  not 
be  mistaken  about  it,  and  that  it  was  certainly  his  voice  that  called 
her  husband  to  the  door.  Rosser  proved  an  alibi,  and  the  trial  re- 
sulted in  a  hung  jury.  Rosser  soon  thereafter  escaped  from  jail, 
and  saved  the  courts  further  trouble  on  his  account." 

Identity  of  persons  and  things. 

§  39.  Wigram  lays  down  rules  of  interpretation  as  quoted  by  Mr. 
Greenleaf  on  Evidence,  vol.  1,  §  287,  note,  as  follows  :  "  For  the  pur- 
pose of  determining  the  object  of  a  testator's  bounty,  or  the  subject 
of  disposition,  or  the  quantity  of  interest  intended  to  be  given  by  his 
will,  a  court  may  inquire  into  every  material  fact  relating  to  the  person 
who  claims  to  be  interested  under  the  will,  and  to  the  property 
which  is  claimed  as  the  subject  of  disposition,  and  to  the  circum- 
stances of  the  testator,  and  of  his  family  and  affairs,  for  the  purpose 
of  enabling  the  court  to  identify  the  person  or  thing  intended  by  the 
testator,  or  to  determine  the  quantity  of  interest  he  has  given  by  his 


24  THE  LAW  OF  'IDENTIFICATION. 

will."  And  the  same  role  applies  to  contracts,  where,  from  any 
cause,  it  becomes  necessary  to  construe  the  contract  in  order  to  iden- 
tify either  the  persons  or  things  intended  by  the  contract.  As  in 
case  where  a  bill  was  drawn  for  £200,  expressed  in  the  body  of  the 
bill  in  words,  but  £245  in  figures  in  the  margin,  it  was  held  that  the 
words  in  the  body  must  be  taken  to  be  the  true  amount  to  be  paid. 
"Where  it  is  sought  to  identify  the  subject-matter  of  a  contract,  and 
in  seeking  for  all  the  surrounding  circumstances  to  shed  light  upon 
matter  of  description,  the  object  is  to  obtain  from  the  words  used  in 
the  instrument,  in  the  light  of  circumstances,  the  intent  and  meaning 
of  the  parties,  and  it  is  held  to  be  the  rule,  that  if  some  of  the  circum- 
stances do  not  correspond  with  a  probable  exposition,  they  will  not 
prevent  its  adoption,  if,  from  the  whole  description,  the  meaning  and 
intent  of  the  party  can  be  collected,  under  the  maxim,  falsa,  demon- 
stratio  non  nocet.1  The  rule  is,  that  where  there  is  a  patent  ambi- 
guity in  a  written  instrument,  it  cannot  be  explained  by  parol,  but 
it  may  be  so  explained  when  there  is  a  latent  ambiguity.2  Further 
distinctions  are  observed  by  the  text-writers,  but  it  is  not  my  prov- 
ince, or  in  the  purview  of  this  work,  to  pursue  this  branch  of  the 
law,  however  interesting. 

Dissimilarity  of  persons  —  proof  of  identity  —  assurance. 

§  40.  As  to  all  the  inferences  of  identity,  permanence  of  individ- 
uality must  be  the  basis,  and  we  must  assume  that  no  two  human  be- 
ings are  precisely  alike,  each  being  having  some  perceptible  difference. 
Time,  that  necessary  element  on  all  things,  will  make,  and  leave  its  mark 
on  the  features  of  individuals ;  but  if  we  possessed  them  yesterday, 
we  are  presumed  to  possess  them  to-day,  perhaps  to-morrow.  Pos- 
sibly two  adults  may  be  so  precisely  alike  as  to  not  be  distinguished 
by  those  most  intimately  acquainted  with  them,  but  in  such  cases  the 
identity  is,  at  best,  but  imperfectly  substantiated,  and  it  is  more 
probable  that  the  witnesses  are  mistaken  than  that  such  resemblance 
actually  exists.  One  may,  for  a  brief  period,  assume  the  similitude 
of  another,  but  the  deception  must  disappear  like  vapor,  when  put 
to  the  test  of  the  rigid  scrutiny  of  a  searching  cross-examination. 
Each  individual  will  be  found  to  possess  certain  distinctive  features 
differing  in  some  respects  from  all  others.  These,  though  modified 
by  age,  retain  the  general  characteristics  for  a  longer  or  shorter 
period,  even  under  disguise.  The  outward  appearance  may  be 

1  Sargent  v.  Adams,  8  Gray,  72.  8  1  Greenl.  Ev.,  §  297,  n. 


IDENTIFICATION  OF  PERSONS.  25 

changed  by  dress,  or  the  manner  of  shaving,  the  wearing  of  the  hair 
or  beard ;  it  may  become  long,  it  may  be  cut  short,  it  may  be  dyed  ; 
but  the  leading  characteristics  remain ;  the  true  tests,  the  general 
appearance  of  the  physiognomical  structures  —  such  as  the  mouth, 
nose,  chin,  cheek  bones,  eyes,  etc.,  even  the  voice,  may  remain  and 
possess  some  peculiarity,  which  will  be  recognized,  such  as  speaking 
in  a  loud  or  low  tone,  quick  or  slow,  loquacious  or  reticent,  smooth 
or  harsh,  unless  successfully  disguised,  or  changed  by  illness,  acci- 
dent, loss  of  voice,  or  loss  of  teeth,  which  sometimes  has  its  effect 
upon  the  articulation.  In  fact,  in  some  cases  persons  have  been 
identified  by  the  voice  alone.1 

The  change  produced  by  time  renders  personal  appearance  the 
most  difficult  of  identification.  We  separate  with  friends  in  youth, 
years  glide  by,  we  bear  their  image  on  the  tablet  of  memory,  meet 
again  in  old  age,  and  there  is  a  mutual  surprise,  to  see  the  change 
wrought  by  the  relentless  hand  of  time.  The  hair  once  like  the  raven, 
if  retained,  is  white,  the  cheeks  furrowed,  once  round,  the  con- 
tracted brow,  the  missing  teeth,  the  languid  eye,  the  sunken  jaws, 
perhaps  from  loss  of  teeth,  the  compressed  lips,  the  pensive  air,  sloth 
of  gait,  inaction,  and  all  these  outward  signs  and  marks  of  the  by- 
gone days.  And  yet  there  is  an  indescribable  something  by  which  you 
recognize  him,  from  general  characteristics,  or  family  peculiarities  or 
resemblances,  and  you  may  identify  him  with  reasonable,  but  perhaps 
not  absolute  certainty.  But  if  there  are  any  distinctive  marks  about 
him,  such  as  lameness,  peculiar  gait,  carriage,  manner,  loss  of  a 
finger,  scar  on  the  face  or  hand,  or  artificial  teeth,  or  blemish  in  the 
eye,  these  bring  a  corresponding  increase  of  assurance,  and  he  is 
identified  with  greater  certainty.  And  then  when  he  converses,  you 
hear  him  narrate  the  incidents  of  your  boyhood  days,  the  reminiscences 
of  youth,  the  schoolmates,  the  playgrounds,  the  teachers,  the  classes, 
the  Sabbath-school,  the  church,  the  minister,  the  sermons,  the  play- 
mates, the  sports,  the  fishing,  the  hunting,  the  dogs  and  their  names, 
the  beaus  and  belles,  who  they  married,  where  they  lived,  and  how 
many  children  they  had,  and  their  names,  the  assurance  is  so  full  that 
you  can  identify  him  with  almost  absolute  certainty.  Thus,  long 
absence  and  those  changes,  in  the  absence,  without  the  distinctive 
peculiarities  or  rigid  scrutiny,  may  bid  defiance  to  recognition  or 
identification.  Then  there  are  differences  in  the  memory  of  witnesses, 

1  Com.  v.  Scott,  123  Mass.  222;  King  v.  Donahue,  110  id.  155;  Brown  v.  Com., 
76  Pa.  St.  319. 

4 


26  THE  LAW  OF  IDENTIFICATION. 

it  may  not  be  retentive  —  the  image  may  fade,  often  the  witness 
reaches  a  conclusion  without  assurance,  and  having  done  so,  will 
stick  to  it  with  a  tenacity  that  would  do  credit  to  the  ancient 
Levites.* 

Personal  identity  —  flash  of  gun  or  pistol  in  the  dark. 

§  41.  Of  the  various  means  of  identifying  a  person,  one  very  per- 
plexing and  doubtful  question  has  grown  out  of  the  subject  in 
which  professional  men  and  experts  disagree  with  witnesses,  and 
the  question  is,  perhaps,  yet  an  open  question,  whether  or  not  a  per- 
son who  fired  a  gun  or  pistol  at  another  in  the  darkness  of  the  night 
can  be  identified  by  means  of  the  light  produced  by  the  flash  of  such 
gun  or  pistol  ?  This  question,  says  Mr.  Taylor,  was  first  referred 
to  the  class  of  physical  science  in  France  in  1809,  and  they  answered 
it  in  the  negative.  A  case  tending  to  show  that  their  decision  was 
erroneous  was  subsequently  reported  by  Fodere.  A  woman  posi- 
tively swore  that  she  saw  the  face  of  a  person  who  fired  at  another 
during  the  night,  surrounded  with  a  kind  of  glory,  and  that  she  was 
thereby  enabled  to  identify  the  prisoner.  This  statement  was  con- 
firmed by  the  deposition  of  the  wounded  party.  Desgranges  of 
Lyons  performed  many  experiments  on  this  subject,  and  he  concluded 
that  on  a  dark  night,  and  away  from  every  source  of  light,  the  per- 
son who  fired  the  gun  might  be  identified  within  a  moderate  distance. 
If  the  flash  was  very  strong,  the  smoke  very  dense,  and  the  distance 
great,  the  person  tiring  the  piece  could  not  be  identified.  The  ques- 
tion, he  says,  was  raised  in  England,  in  the  case  of  Hex  v.  White, 
at  the  Croydon  Assizes  in  1839.  A  gentleman  was  shot  at  while 
driving  in  a  gig  during  a  dark  night ;  he  was  wounded  in  the  elbow; 

*Wharton  &  Stille  in  3  Med.  Jur.,  §  661,  say:  "  We  must  remember,  also,  that  while  two 
persons  (I.e.,  twins)  may  be  undistinguishable,  except  by  near  relatives,  at  an  early  period  of  life, 
they  diverge  as  they  grow  older,  and  gradually  assume  distinctive  types.  We  must,  there- 


Bpeciflc  gravity  of  an  elementary  substance,  the  proportion  in  which  substances  are  chemically 
united  into  compounds,  the  definite  forms  into  which  they  crystallize,  the  modes  of  action  of  af- 
flnitics,  of  reagents  and  many  other  similar  instances  of  nature's  work  in  this  province,  are  pre- 
cisely similar  to  each  other;  they  do  not  vary  even  by  a  hair's  breadth.  Far  otherwise  is  it  in  the 
world  of  living  organism,  where  variety  is  the  rule  and  uniformity  is  the  exception;  nay  it  is 
not  even  the  exception,  for  not  one  such  exception  —  that  is  the  case  of  two  indescribable* 
—  can  be  produced.  So  far  as  I  know  Leibnitz  is  the  only  philosopher  of  modern  times  who 
has  noticed  and  duly  emphasized  this  wonderful  fact;  for  the  statement  of  it  is  one  of  the 
fundamental  axioms  on  which  this  whole  system  is  founded  *  *  *  The  illustration  ho 
employed  while  discussing  the  subject  In  the  presence  of  Princess  Caroline,  as  they  were  walk- 
Ing  in  a  garden,  was  that  no  two  leaves  precisely  alike  could  be  found  on  any  bush.  Another 
gentleman  who  was  present  took  up  the  challenge,  but  after  search  was  obliged  to  confess  that 
the  statement  of  Leibnitz  was  probably  correct.  A  better  illustration,  as  it  seems  to  me,  might 
be  taken  from  the  human  face.  Here  all  the  differences  are  crowded  together,  within  a  nar- 
row compass,  say  within  the  limits  of  six  by  ten  inches,  and  all  the  main  features,  brow,  nose, 
eyes,  mouth,  cheeks  and  chin,  are  constructed  essentially  on  the  same  general  pattern.  But 
what  a  marvelous  wealth  of  difference  underlies  all  this  uniformity.  Among  the  many  millions 
of  human  faces  that  people  I  his  earth,  no  two  can  be  found  so  nearly  alike  but  that  they  are 
easily  distinguished  at  a  glance. " 


IDENTIFICATION  OF  PERSONS.  27 

when  he  observed  the  flash  of  the  gun,  he  saw  that  the  piece  was 
leveled  toward  him,  and  the  light  of  the  flash  enabled  him  to  recog- 
nize at  once  the  features  of  the  accused.  On  cross-examination  he 
said  he  was  quite  sure  he  could  see  the  prisoner,  and  that  he  was  not 
mistaken  as  to  his  identity.  The  prisoner  being  skillfully  defended, 
was  acquitted.1 

Same  —  a  later  English  case  —  identity. 

§  42.  The  same  author  gives  a  later  English  case  of  Rex  v.  Stepley, 
decided  in  1862.  The  prisoner  shot  at  the  prosecutor,  a  gate-keeper, 
on  a  dark  evening  in  December,  and  the  latter  swore  that  he  dis- 
tinctly saw  the  prisoner  by  the  flash  of  the  gun,  and  could  identify 
him  by  the  light  on  his  features.  His  evidence  was  corroborated  by 
three  other  witnesses  who  saw  him  not  far  from  the  spot ;  and  by  one 
who  saw  him  in  the  act  of  running  away.  He  was  convicted.2 

Same  —  experiments  by  professors  —  experts. 

§  43.  On  the  14th  day  of  May,  1833,  at  ten  o'clock,  p.  M.,  says  Mr. 
Beck,  the  Sieur  Labbe,  mayor  of  the  commune  of  Foulanges,  in  the 
department  of  the  Calvados,  in  passing  on  horse-back  along  the 
highway,  with  the  widow  Beaujean.  his  servant,  on  foot,  was  fired  at 
with  a  gun,  from  behind  a  ditch  and  through  a  hedge ;  he  was 
wounded  in  the  hand.  It  was  an  hour  and  forty-three  minutes  before 
the  rising  of  the  moon,  and  the  night  was  dark,  yet,  both  Labbe  and 
his  servant  swore  that  they  recognized  the  accused  by  the  light  of 
the  discharge.  One  of  the  persons  accused  was  arrested,  tried,  and 
condemned  to  death,  but  an  appeal  was  taken  to  the  Court  Cassations. 
The  advocate  consulted  M.  Leferne  Gineau,  member  of  the  Institute, 
and  professor  of  experimental  physics  in  the  Imperial  College  of 
France,  whether  it  was  possible  that  the  priming  (amorse)  in  being 
inflamed  could  produce  light  sufficient  to  discover  the  face  of  the 
person  firing.  Gineau,  with  his  son  and  Dufuis  and  Caussin,  also 
professors,  with  several  others,  retired  on  the  8th  of  December  at 
eight  o'clock,  p.  M.,  into  a  dark  room,  and  there  Professor  Gineau 
fired  several  primings,  the  spectators  being  stationed  at  different  dis- 
tances, in  order  to  witness  the  effect.  The  light  produced  was  strong, 
but  fuliginous,  and  so  rapidly  extinguished  that  it  was  impossible 
to  distinguish  the  individual  firing.  They  then  descended  into  the 
court-yard  of  the  college,  loaded  the  gun  with  powder,  but  the  results 

1  Taylor  Med.  Jur.  403.  s  Taylor  Med.  Jur.  404. 


28  THE  LAW  OF  IDENTIFICATION. 

on  discharging  were  the  same.     The  condemned  was  acquitted  and 
discharged.1 

Memory  of  features  —  discrimination. 

§  44.  Memory  in  children,  says  Mr.  Wharton,  is  more  tenacious 
than  with  adults,  but  less  discriminating,  seizing  often  on  features 
peculiarly  evanescent.  With  adults  a  good  deal  depends  upon  nat- 
ural gifts  of  discrimination,  a  good  deal  upon  the  object  we  have  in 
view  in  studying  the  face.  Some  more  rarely  forget  a  face  they 
have  once  seen ;  and  it  used  to  be  stated  of  General  Scott,  that  he 
recollected  the  faces,  though  not  the  names,  of  soldiers  of  his  com- 
mand with  whom  his  acquaintance  was  remote  and  slight.  And 
there  is  no  question  that  the  power  of  distinguishing  countenances 
may  be  excited  by  a  particular  crisis,  matured  by  long  practice.  We 
recollect  faces  on  which  our  attention  has  been  concentrated  in  pro- 
portion to  the  vividness  of  the  concentration.  And  police  officers 
sometimes  acquire  the  power  of  catching  a  glimpse  in  a  moment 
that  enables  them  to  identify  the  person  thus  seen  though  afterward 
he  may  be  skilfully  disguised.2 

Burglary  —  mistaken  identity  —  corrected. 

§  45.  Where  a  witness  testifies  directly  and  positively  to  a  person 
as  being  the  identical  person  whom  such  person,  the  witness,  has 
seen  upon  some  former  occasion,  and  identifies  him  with  the  person 
whose  identity  is  in  dispute,  he  may  be  tested  by  presenting  to 
him  in  court  another  person,  as  to  whose  similarity  with  the  one  in 
controversy  he  may  be  interrogated.  Mr.  Ames,  relates  the  case  of 
a  woman  who  prosecuted  a  man  and  had  him  tried  for  a  burglary  in 
which  she  claimed  that  her  house  and  her  person  had  been  plun- 
dered. She  testified  positively  to  the  prisoner  as  the  perpetrator  of 
the  crime.  But  about  the  time  the  verdict  of  guilty  was  about  to 
be  rendered,  the  sheriff  offered  a  suggestion  to  the  effect  that  a  man 
who  had  been  tried  only  a  day  or  two  before  that  was  very  similar 
in  appearance  to  the  prisoner,  when  the  convict  was  ordered  into 
court,  and  the  prosecutrix,  upon  seeing  him,  immediately  declared 
that  she  had  been  mistaken  in  the  man  and  that  the  latter  was  the 
offender.  While  this  means  of  establishing  the  identity  of  the  accused 
is  proper  and  correct,  there  must  be  a  direct  presentation  of  such 
second  person  to  the  witness  in  the  presence  of  the  court  and  jury.3 

1  1  Ttock  Mod.  Jur.  518.  *  Wliart.  Cr.  Ev.  (8th  ed.),  §  808. 

•  Whart.  Cr.  Ev.  (8th  ed.),  §  806. 


IDENTIFICATION  OF  PERSONS.  29 

Lost  child  —  marks  —  identity  —  experts. 

§  46.  Personal  identity,  as  we  have  seen,  depends  to  a  greater  or 
less  degree  upon  personal  appearance,  which  is  not  always  reliable, 
and  for  greater  certainty,  resort  is  often  had  to  marks  on  the  person 
whose  identity  is  in  dispute ;  and  even  those  are  often  unreliable, 
and  lead  to  mistaken  identity.  In  proof  of  this  fact,  cases  are  not 
wanting ;  in  fact  the  books  which  give  cases  of  mistaken  identity  are 
replete  with  instances  where  the  most  conclusive  circumstances  of 
identity  have  led  to  the  greatest  mistakes.  A  combination  of  coin- 
cidences, however  conclusive  they  may  seem  upon  the  first  impulse, 
may  prove  deceptive.  Mr.  Beck  gives  an  instance  of  this  kind — the 
case  of  a  child  which  had  been  bled  in  the  right  arm  when  sixteen 
months  old ;  when  nearly  four  years  old  the  child  was  lost,  and  two 
years  thereafter  the  godmother,  seeing  two  boys  pass,  was  struck 
with  the  view  of  one  of  them ;  she  called  him  to  her,  and  was  con- 
vinced that  it  was  her  godson.  The  identity  was  also  considered  to 
be  proved  by  the  discovery  of  a  cicatrix  from  bleeding  in  the  right 
arm,  and  a  cicatrix  from  an  abscess  in  the  right  knee,  both  of  which 
were  present  in  the  lost  child,  and  also  in  the  one  that  was  found. 
The  latter,  however,  had  upon  its  body  marks  of  the  small-pox, 
while  no  marks  of  the  kind  were  on  the  body  of  the  former.  The 
child  was  claimed  by  a  widow  Lambrie,  and  many  witnesses  deposed 
that  it  was  really  her  son.  The  court  decided  in  her  favor,  chiefly 
on  the  ground  that  the  lost  child  was  not  marked  with  the  small- 
pox. The  surgeons  disagreed  as  to  the  cause  of  the  cicatrix  on  the 
arm.  Three  declared  that  it  had  been  made  with  a  sharp  instru- 
ment, others  that  it  was  not  from  bleeding,  but  from  the  opening 
of  an  abscess.1  Here  again  we  find  surgeons  as  experts  disagreeing, 
a  thing  not  at  all  unusual,  in  fact  it  is  a  frequent  occurrence.  And 
when  men  of  the  same  profession  are  called  into  court  as  experts, 
upon  the  same  state  of  case,  upon  the  same  examination,  and  they 
disagree,  we  may  well  say  that  expert  testimony,  as  a  general  rule, 
is  of  little  value  as  evidence,  if,  indeed,  it  ever  arises  to  the  dignity 
of  evidence,  or  deserves  the  name. 

Comparison  —  identity  of  persons  and  things. 

§  47.  In  an  English  case  involving  the  question  of  personal  iden- 
tity, PARKE,  B.,  said :  "  In  the  identification  of  person,  you  com- 
pare in  your  mind  the  man  you  have  seen  with  the  man  you  see 

1  Beck  Med.  Jur.  655. 


30  THE  LAW  OF  IDENTIFICATION. 

at  the  bar.  The  same  rule  belongs  to  every  species  of  identifica- 
tion." ALDERSON,  B.,  in  the  same  case,  said  :  "  Generally  where- 
ever  there  is  such  a  coincidence  in  admitted  facts  as  makes  it  more  rea- 
sonable to  conclude  that  a  certain  subject-matter  is  one  thing  rather 
than  another,  that  coincidence  may  be  laid  before  the  jury,  to  guide 
their  judgment  in  deciding  on  the  probability  of  the  facts."1 

Uncertainty  in  personal  identity. 

§  48.  A  well-known  gentleman  of  fashion  very  narrowly  escaped 
conviction  for  a  highway  robbery,  from  his  extraordinary  resem- 
blance to  a  notorious  highwayman  of  the  day.  Mr.  Beck  gives  this 
case  in  his  Med.  Jur.  (Yth  ed.)  408.  Sir  Thomas  Davenport,  bar- 
rister, swore  positively  to  the  person  of  two  men,  whom  he  charged 
with  robbing  him  and  his  lady  in  the  open  daylight,  but  a  clear  alibi 
was  proven,  and  when  the  real  robbers  were  arrested,  he,  on  seeing 
them,  at  once  changed  his  mind,  and  acknowledged  he  had  been  mis- 
taken, and  thus  we  see  the  uncertainty  of  personal  identity.2  The 
same  author,  on  moral  certainty,  says  :  "  Take  the  strongest  case  :  a 
number  of  witnesses  of  character  and  reputation,  and  whose  evidence 
is  in  all  respects  consistent,  depose  to  having  seen  the  accused  do 
the  act  with  which  he  is  charged  ;  still  the  jury  only  believe  his  guilt 
on  two  presumptions,  either  or  both  of  which  may  be  fallacious, 
viz.,  that  the  witnesses  are  neither  deceived  themselves  nor  deceiv- 
ing them,  and  the  freest  and  the  fullest  confessions  of  guilt  have  oc- 
casionally turned  out  untrue.  Even  if  the  jury  were  themselves 
the  witnesses,  there  would  still  remain  the  question  of  identity  of 
the  person  whom  they  saw  do  the  deed,  with  the  person  brought 
before  them  accused  of  it ;  and  identity  of  person  is  a  subject  on 
which  many  mistakes  have  been  made.  The  wise  and  humane 
maxim  of  law  that  it  is  safer  to  err  in  acquitting  than  condemning, 
and  that  it  is  better  that  many  guilty  persons  should  escape  than 
one  innocent  person  suffer,  are,  however,  often  perverted  to  justify 
the  acquittal  of  persons  of  whose  guilt  no  reasonable  doubt  could 
exist.3 

Bigamy  — identity  of  the  second  wife. 

§  49.  The  identity  of  parties  named  in  an  indictment  must  be 
proved  ;  upon  an  indictment  for  bigamy,  it  was  proved,  by  a  person 
who  was  present  at  the  second  marriage,  that  the  woman  married 

1  Fryer  v.  Oatbercole.  13  Jur.  542.  *  Best  Prin.  Ev.  86. 

8  Beat  Prin.  Ev.  504,  §  517. 


IDENTIFICATION  OF  PERSONS.  31 

was  named  Hannah  Wilkinson,  the  name  charged  in  the  indictment, 
but  there  was  no  further  proof  that  such  was  her  name  or  that  she 
had  ever  called  herself  by  that  name.  PAKKE,  J.,  held  the  proof  to 
be  insufficient,  and  directed  an  acquittal.  He  subsequently  added, 
that  to  make  the  evidence,  sufficient,  there  should  have  been  proof 
that  the  prisoner  "  was  then  and  there  married  to  a  certain  woman 
by  the  name  of,  and  who  called  herself  Hannah  Wilkinson,  be- 
cause the  indictment  undertakes  that  a  Hannah  "Wilkinson  was  the 
person,  whereas,  in  fact,  there  was  no  proof  that  she  had  ever  be- 
fore gone  by  that  name  ;  and  if  the  banns  had  been  published  in  a 
name  which  was  not  her  own,  and  which  she  had  never  gone  by, 
the  marriage-  would  have  been  invalid.1  In  chancery  proceedings 
in  England  it  is  held  that  identity  may  be  inferred  from  extrinsic 
evidence ;  as  if  the  name,  description  and  character  of  the  party  to 
the  action  agree  with  the  name  and  description  of  the  party  answer- 
ing, it  is  prima  facie  evidence  of  identity.2 

Indictment  —  variance  —  divorce  — confrontation. 

§  50.  In  England,  to  reverse  an  outlawry  upon  an  indictment  for 
a  variance  in  the  name  of  the  defendant,  between  the  record  and 
the  process,  the  diversity  must  be  shown  by  the  writ  identitate 
nominis?  Mr.  Bishop,  in  his  Marriage  and  Divorce  and  Separa- 
tion,4 speaking  of  adultery  and  specific  divorce  and  nullity  suits, 
says  :  "  Where  a  sexual  commerce,  or  facts  indicating  it,  are  testified 
to,  there  must  be  evidence,  from  the  same  or  other  witnesses,  of  what 
the  identity  arid  diversity  of  the  parties  are ;  namely,  that  one  of 
them  was  the  defendant  and  the  other  was  not  the  plaintiff ;  to  aid 
this  part  of  the  proofs,  the  ecclesiastical  courts  sometimes  resorted 
to  what  is  termed  a  decree  of  confrontation ;  it  was  applied  for  on 
special  grounds,  and  was  in  a  certain  form.  The  defendant  was 
thereupon  to  be  produced  to  a  witness  who  had  known  her  in  both 
characters  of  wife  and  adulteress,  or  simultaneously,  to  two  or  more 
witnesses  who  could  separately  identify  her  in  each  character. 
*  *  *  Other  methods  of  proving  the  identity,  generally  less 
effective  than  the  confrontation  decree,  will  in  particular  cases  sug- 
gest themselves.  The  presumption  of  identity  from  the  identity  of 
name  is  sometimes  available. 

1  Eoscoe  Cr.  Ev.  (7tli  ed.)  327.  Citing  »  Roscoe  Or.  Ev.  (7th  ed.)  327.    Citing 

Rex  v.  Drake,  1  Lew.  C.  C.  25.  Hennell  v.  Lyon,  1  B.  &  Aid.  182;  Gar- 

3  Hawkins'  Pleas  of  the  Crown,  654.  vin  v.  Carroll,  10  Ir.  L.  R.  330. 

4  Bishop  Mar.,  Div.  and  Sep.,  §  1411. 


32  THE  LAW  OF  IDENTIFICATION. 

Action  to  enforce  specific  performance  —  heirship. 

§  51.  An  action  was  brought  to  enforce  specific  performance  by 
the  administrator  of  Isbel,  deceased,  against  the  unknown  heirs  of 
William  Dease  on  a  contract  between  Isbel  and  Dease  in  1838, 
whereby  Isbel  was  to  receive  three  hundred  and  seventy  acres  of 
the  land  to  be  granted  under  a  certificate  for  one-third  of  a  league 
of  land  issued  to  Dease.  The  land  in  controversy  was  located  and 
caused  to  be  located  by  Isbel  under  that  agreement.  The  court  ap- 
pointed an  attorney  to  represent  the  unknown  heirs  of  Dease, 
and  during  the  pendency  of  the  suit,  a  number  of  persons,  rep- 
resenting themselves  to  be  the  widow  and  children  of  William  Dease, 
made  themselves  parties  defendant.  John  H.  and  John  W.  Baker 
were  on  the  land,  but  without  title,  and  they  were  made  defendants. 
The  attorney  for  the  unknown  heirs,  as  well  as  those  who  claimed 
to  be  the  widow  and  children  of  Dease,  asserted  rights  against  the 
Bakers,  and  all  these  set  up  the  defense  of  stale  claim  against  the 
plaintiff.  There  was  judgment  for  the  plaintiff  and  for  the  widow 
and  children,  and  the  entire  tract  was  partitioned.  The  Bakers 
appealed,  and  presented  two  questions  —  that  the  evidence  was  not 
sufficient,  and  that  the  widow  and  children  were  not  the  heirs  of 
Dease.  The  evidence  tended  to  show  that  there  were  three  persons 
whose  names  were  William  Dease  or  Deas,  members  of  the  same 
family,  and  who  at  times  spelled  their  names  differently.  One  of 
these,  it  was  shown,  never  came  to  Texas,  but  the  others  did  ;  of  one 
of  them  there  was  no  trace,  while  the  other  was  identified  as  the  hus- 
band and  father  of  the  defendants,  by  circumstances  which  seemed 
satisfactory.1 

Ancestor  —  identity  of  —  claim  to  land. 

§  52.  In  an  action  in  the  same  State  the  plaintiffs  claimed  land  as 
heirs  of  Solomon  Keel,  to  whom  the  land  was  patented,  and  they 
proved  heirship  of  one  Dr.  Solomon  Keel,  and  that  he  had  located 
the  land,  and  had  obtained  a  patent.  The  defendant  proved  the  exist- 
ence of  another  Solomon  Keel,  residing  in  Peter's  Colony,  under 
which  the  certificate  was  issued,  with  testimony  that  the  certificate 
was  issued  to  him,  and  that  Dr.  Keel  did  not  reside  in  the  colony. 
It  was  held  to  be  error  to  refuse  to  submit  to  the  jury  the  issue  as 
to  the  identity  of  the  person  to  whom  the  certificate  was  issued. 
The  judgment  was  reversed  and  the  cause  remanded  for  this  reason.2 

>  Baker  v.  McFarland,  77  Tex.  294.  •  Greening  v.  Keel,  72  Tez.  207  (1888). 


IDENTIFICATION  or  PERSONS.  33 

Same  —  claim  to  land  —  identity  of  name. 

§  53.  And  in  still  another  Texas  case,  the  name  of  the  grantee  in 
a  grant  of  land  was  borne  by  two  persons,  both  long  since  dead. 
Plaintiff  claimed  under  one,  and  defendant  under  the  other.  It  was 
held  that  testimony  was  admissible  to  show  that  one  of  the  persons 
claimed  the  land,  and  exercised  acts  of  ownership  over  it  for  a  num- 
ber of  years,  and  that  it  afforded  strong  evidence  that  she  was  the 
person  intended  to  be  named  in  the  grant.1  But  it  is  held  in  the 
same  State,  following  the  general  rule,  that  the  identity  of  name  is 
ordinarily  sufficient  evidence  of  identity  of  the  person  in  a  chain  of 
title.  That  in  the  absence  of  any  other  testimony,  it  is  error  to  sub- 
mit to  the  jury  the  question  of  such  identification.2 

Name  —  identity  —  person  —  remote  transactions. 

§  54.  In  an  early  case  in  Texas,  the  court  held  as  last  above  indi- 
cated, as  to  identity  of  name  with  the  person  in  a  chain  of  title  and 
conveyance,  for  all  purposes  of  the  investigation  of  title,  and  that 
the  identity  of  "  Jane  Carroll "  with  "  Jane  Tarbox  "  was  sufficiently 
shown  to  establish  the  chain  of  title,  in  the  absence  of  proof  to  the 
contrary  ;  from  the  partial  similarity  of  name,  the  possession  of  the 
original  title  papers,  the  recital  in  the  deed  of  conveyance  to  "  Jane 
Carroll,"  that  the  deed  was  made  and  executed  to  her  in  considera- 
tion of  her  approaching  marriage  with  Lyman  Tarbox,  and  the  re- 
cital in  a  subsequent  deed  by  "  Jane  M.  Tarbox,"  that  she  is  the 
wife  of  Lyman  Tarbox,  and  as  such  joins  in  the  conveyance.3  But 
if  the  transaction  be  remote,  the  identity  of  name  alone  (as  we  have 
seen)  is  not  sufficient  evidence  of  identity  of  the  person.  In  a  Penn- 
sylvania case  in  ejectment,  upon  the  issue  whether  the  plaintiff  is 
related  to  the  person  last  dying  seized,  declarations  of  the  deceased 
person,  proved  to  have  been  related  to  his  family,  was  held  to  be 
competent  evidence  of  identity,  although  they  did  not  belong  to  his 
branch  of  it.  And  furthermore,  it  was  held  competent  to  give  evi- 
dence that  the  witness  had  been  informed  by  his  mother  that  the 
person  last  seized  was  his  uncle.  And  in  the  same  case,  it  was  held 
that  a  church  record  of  births,  deaths  and  burials  is  not  competent 
to  prove  births,  and  that  identity  of  name  alone  is  not  evidence  of 
identity  of  person  in  remote  transactions.4 

1  Hickman  v.  Gillum,  66  Tex.  314.  8  Chamblee  v.  Tarbox,  27  Tex.   139, 

2  Robertson  v.  Du  Bose,  76  Tex.  1.  And    144. 

see  Cox  v.  Cock,  59  Tex.  524;  Chamblee        4  Sitler  v.  Gehr,  105  Pa.  St.  577.  And 
v.  Tarbox,  27  id.  144.  see  Northrop  v.  Hale,  76  Me.  306. 

5 


34  THE  LAW  OF  IDENTIFICATION. 

Bigamy  —  perjury — weight  of  evidence. 

§  55.  In  an  indictment  for  perjury,  in  giving  evidence  in  an  ex- 
amination before  the  mayor  of  Indianapolis,  of  one  William  Parker, 
for  bigamy,  in  marrying  the  appellant,  Sarah  E.  Hendricks,  he  hav- 
ing another  wife  living.  She  having  sworn  that  Parker  never  was 
married  to  her,  and  that  she  never  was  with  him  in  Johnson  county, 
where  the  marriage  was  alleged  to  have  occurred  ;  in  which  trial 
there  was  a  verdict  of  guilty.  The  allegation  of  perjury  was  sup- 
ported by  the  testimony  of  a  witness  who  swore  that  he  was  present 
at  the  marriage,  and  also  by  record.  There  was  a  verdict  of  guilty, 
and  on  appeal,  FKAZEK,  J.,  said  :  "  The  jury  was  instructed  that 
unless  there  was  some  extraneous  fact  in  evidence  to  raise  a  doubt 
of  the  identity  of  the  parties,  the  presumption  was  that  they  were 
the  same  parties.  This,  we  think,  was  error.  "We  think  the  ques- 
tion was  one  of  fact,  and  not  of  law,  and  that  it  was,  therefore,  the 
province  of  the  jury,  and  not  of  the  court,  to  judge  whether  the  mar- 
riage record  was  alone  evidence  strongly  corroborating  the  witness 
as  to  the  marriage  of  these  identical  persons.  The  names  being  the 
same,  was  a  fact  from  which  the  jury,  not  the  court,  might  draw  an 
inference ;  it  was  some  evidence,  but  whether  sufficient  or  not,  it 
was  not  for  the  court  to  say."1 

Name  in  deeds — presumption  of  identity. 

§  56.  Where  the  same  name  occurs  in  two  deeds  of  conveyance 
raising  the  question  of  identity  as  to  the  grantor  in  a  subsequent 
deed,  and  the  grantee  in  a  prior  deed,  being  the  same  person,  this 
was  held  in  California  to  be  a  question  for  the  jury,  and  not  for  the 
court,  either  as  a  question  of  law,  or  a  preliminary  question  of  fact 
to  be  decided  before  the  admission  of  the  deed  in  evidence,  and  the 
party  must  satisfy  the  jury  when  he  produces  the  deed  of  the  iden- 
tity.2 Where  a  former  conviction  is  pleaded,  it  is  a  question  for  the 
jury  to  determine  whether  the  party  convicted  was  the  same  party 
who  is  under  the  indictment  in  the  subsequent  prosecution.3  And 
it  is  held  that  there  is  no  legal  presumption  that  one  bearing  the 
name  of  the  son  of  a  deceased  person  is  one  of  his  heirs  ;  but  it  is  a 
question  for  the  jury  to  decide,  under  all  the  circumstances ;  such 
as  identity  of  name,  residence  of  the  claimant,  and  other  members 
of  the  family,  and  the  surrounding  circumstances.4 

1  Hendricks  v.  State,  26  Ind.  494.  *  Freeman  v.  Loftis,  6  Jones  L.  (N.  C.) 

» Carleton  v.  Townsend,  28  Cal.  221.       528. 
>  State  v.  Robinson,  39  Me.  154. 


IDENTIFICATION  OF  PEESONS.  35 

Instruments  of  crime  —  personal  identity. 

§  57.  One  of  the  common  means  of  identifying  an  individual  with 
a  crime  which  has  been  committed,  is  the  instruments  used  in  the 
perpetration  thereof ;  as  in  the  crime  of  murder,  instruments  found 
at  or  near  the  scene  of  the  crime,  as  a  pistol  found  near  the  body  of 
the  deceased,  a  stick  or  club,  or  a  knife;  or  in  cases  of  burglary,  a 
chisel,  false  key,  or  other  instruments  used  to  effect  an  entrance, 
found  in  or  about  the  house  broken  into,  or  any  burglar's  tools  left  in 
or  about  the  house ;  and  especially  if  there  are  indications  of  the 
same  having  been  used  in  the  perpetration  of  the  crime.  Then  the 
important  object  is  to  take  these  indications  as  a  clue  to  trace  it  to 
some  particular  individual  as  the  owner  or  possessor  of  these  instru- 
ments, or  to  identify  it  as  either  belonging  to,  or  being  in  the  pos- 
session of,  some  person  suspected  of  the  crime,  or  of  some  one  hav- 
ing been  in  possession  of  such  about  the  time  of  the  com  mission 
of  the  crime.  As  where  the  instrument  has  been  recently  made, 
repaired,  mended,  borrowed  or  stolen ;  it  may  be  identified  by  the 
maker,  vender  or  owner,  and  this  sheds  a  light  upon  the  transaction, 
and  often  furnishes  strong  circumstances  tending  to  identity,  and 
to  fix  the  liability  upon  some  particular  individual  as  the  perpetrator 
of  the  crime.  Or,  if  it  merely  creates  or  raises  a  suspicion,  it  limits 
inquiry  to  that  particular  direction,  and  may  lead  to  the  discovery 
of  corresponding  facts  and  circumstances,  which  lead  to  proof  of  a 
satisfactory  identification  of  the  actual  offender.  As  where  death 
was  caused  by  a  gun-shot,  and  the  ball  was  extracted  from  the  dead 
body,  and  all  the  guns  in  the  neighborhood  were  examined,  and  one 
was  found  to  carry  a  ball  of  the  same  weight  and  caliber;  while  this 
was  not  at  all  conclusive,  yet  it  limited  and  directed  inquiry.  This, 
taken  together  with  a  former  grudge,  a  quarrel,  a  lawsuit  between 
the  parties,  ill  feeling,  bad  and  hot  blood,  and  threats  by  the  accused 
against  the  life  of  the  deceased  —  these,  with  tracks  of  man  or 
horse,  corresponding  with  those  of  the  accused,  may  form  links  in 
the  chain  of  circumstantial  evidence  which  lead  to  satisfactory  iden- 
tification. And  yet,  experience  and  observation  admonish  us,  that 
great  caution  is  necessary,  in  all  such  cases,  to  avoid  mistaken  iden- 
tity, and  that  to  vest  mere  circumstances  with  the  force  of  truth, 
they  must  exclude  every  other  hypothesis  and  generate  full  belief. 

Size  of  the  person  to  be  identified. 

§  58.  The  circumstance  of  the  size  and  stature  of  a  person  is  one 


36  THE  LAW  OF  IDENTIFICATION. 

which  generally  makes  the  first  and  most  lasting  impression  upon 
the  vision,  when  applied  to  the  particular  person  to  be  identified  ; 
whether  excessive  or  diminutive,  i.  <?.,  above  or  below  the  medium 
size  of  ordinary  persons,  above  or  below  the  height  or  weight.  As 
in  Barbot's  case,  where  the  principal  circumstance  tending  to  prove 
the  identification  of  the  prisoner  was  his  diminutiveness  of  person.1 
As  to  the  opportunities  for  observation,  it  may  be,  and  often  is,  an 
immediate  and  instantaneous  impression  under  circumstances  of 
hurried  motion  or  imperfect  light,  which  would  not  admit  of  a  close 
observation  as  to  matters  more  minute,  such  as  his  peculiarities,  if 
he  can  be  seen  at  all  with  distinctness,  where  the  outlines  of  the 
person  give  a  sufficient  idea  of  the  stature.2 

Personal  appearance  —  peculiarities. 

§  59.  While  the  above,  when  taken  alone,  is  of  little  weight,  it 
becomes  important  in  connection  with  other  facts  and  circumstances 
of  identification.  But  the  personal  appearance  with  its  peculiarities 
will  furnish  many  important  means  for  personal  identity,  many  of 
which  may  be  more  readily  imagined  than  described ;  we  may  men- 
tion the  loss  of  a  leg,  an  arm,  a  finger,  an  eye,  front  teeth,  scar  on 
the  face  or  hand,  the  hair  and  beard,  their  color  and  length,  peculiar 
features,  voice,  lameness,  peculiar  gait  and  any  mutilation  or  de- 
fect which  is  visible.  It  was  remarked  in  an  important  case,  where 
the  proof  of  the  guilt  depended  upon  circumstantial  evidence,  "  it  is 
obvious  how  perfectly  slight  and  utterly  inconclusive  any  one,  or 
any  two  or  three  of  these  circumstances  must  have  been,  yet,  all 
being  combined,  the  result  of  the  trial  (a  verdict  of  guilty)  shows 
that  the  jury  felt  safe  in  acting  upon  them,  as  leaving  no  doubt.3 
Another  means  of  identification  is  objects  connected  with  the  person 
of  the  accused,  as  a  horse  which  the  prisoner  was  riding  at  the  time 
of  the  commission  of  the  crime.  In  an  English  case,  three  Bow 
street  officers  were  attacked  in  a  post-uhaise  by  two  persons  on  horse- 
back ;  one  of  the  officers  stated  that  he  saw  by  the  light  produced  by 
the  flash  of  the  pistol  fired,  that  the  horse  of  one  of  the  robbers,  who 
stationed  himself  at  the  head  of  the  horses,  was  a  dark-brown  horse  and 
of  a  very  remarkable  shape,  having  a  square  head  and  thick  shoulders, 
and  such  that  he  could  select  him  out  of  fifty  horses ;  and  that  he 
had  since  seen  him  at  the  stable  in  Long-Acre.4 

1  Barbot's  case,  18  State  Trials,  1267.         »  Mendum  v.  Com.,  6  Rand.  704,  713. 
•  Rex  v.  Brook,  81  State  Trials,  1137.         4  Rex  v.  Haines,  8  P.  &  F.  144. 


IDENTIFICATION  OF  PEKSONS.  37 

Instrument  used  by  criminal  —  identity. 

§  60.  There  are  many  coincidences  which  may  serve  as  a  means 
of  personal  identification,  after  the  commission  of  an  offense  or  an 
alleged  crime,  to  connect  the  prisoner  with  the  transaction,  and  thus 
identify  him  as  the  perpetrator  of  the  crime;  we  may  mention  the 
weapon  or  instrument  used  in  the  perpetration,  impressions  made  at 
the  scene  of  the  crime  by  instruments  found  in  the  possession  of  the 
prisoner,  as  where  marks  were  found  upon  the  window  of  a  house 
which  corresponded  with  a  chisel  in  the  possession  of  the  prisoner.1 
Impressions  made  at  the  scene  of  the  crime  by  portions  of  the  person 
of  the  criminal,  or  by  articles  of  dress,  clothing,  shoes,  etc.,  correspond- 
ing with  those  of  the  prisoner.2 

Impressions  made  by  the  teeth. 

§  61.  Mr.  Burrill,  in  his  Circumstantial  Evidence,  gives  a  case  as 
related  by  Jfascardus,  in  which  impression  made  by  the  teeth  furnished 
evidence  of  identification,  "where  an  inclosed  ground,  set  with  fruits, 
was  broken  into  by  night,  and  several  of  them  eaten ;  the  rinds  and 
fragments  of  some  of  which  were  found  lying  about.  On  examina- 
tion of  these,  it  appeared  that  the  person  who  ate  them  had  lost  two 
front  teeth,  which  caused  suspicion  to  fall  on  a  man  in  the  neighbor- 
hood, who  had  lost  a  corresponding  number;  and  he,  on  being  taxed 
with  the  theft,  confessed  his  guilt."3  Another  case  is  given  thus  : 
"  In  a  late  case  of  burglary  at  Albany,  where  a  store  was  robbed  of 
goods,  a  number  of  boards  upon  which  goods  were  wound,  were  found 
near  the  canal ;  upon  one  of  these  boards  was  an  indentation,  as  of  a 
person  who  used  his  teeth  in  pulling  it  from  between  the  goods,  and 
showing  that  the  robber  had  lost  two  teeth.  This  was  the  case  with 
the  individual  who  had  been  arrested,  and  was  relied  on  as  a  cor- 
roborating circumstance  against  him.4 

Bastardy  —  evidence  of  identity —  rule  in  Maine. 

§  62.  A  different  rule  prevails  in  Maine,  if  we  can  say  there  is  an 
established  rule  there,  on  the  subject,  from  the  rule  we  see  in  North 
Carolina.  It  was  held  in  Maine,  in  1839,  that  testimony  of  the  re- 
semblance of  the  child,  in  a  bastardy  case,  to  the  alleged  father,  or 
the  want  of  it,  was  not  admissible,  it  not  being  a  matter  of  fact,  but 
merely  of  opinion.  In  a  case  presenting  this  question  —  and  it  seemed 
to  be  a  case  of  first  impression  in  that  State  —  the  court,  in  comment. 

1  Rex  v.  Bowman,  Alison  Princ.  314.  8  Burrill  Cir.  Ev.  269. 

8  Wills  Cir.  Ev.  100.  4  Burrill  Cir.  Ev.  269,  note. 


38  THE  LAW  OF  IDENTIFICATION. 

ing  upon  it,  among  other  things,  said  :  "  It  is  said  that  the  testimony 
offered  should  have  been  admitted,  because  the  color  of  the  child 
might  have  been  such  as  to  prove,  conclusively,  that  the  defendant 
was  not  the  father  of  it.  But  it  was  not  the  color,  or  any  peculiaritv 
of  conformation  or  form  of  features,  as  matters  of  facts,  that  were 
proposed  to  be  proved,  it  was  to  prove  the  resemblance,  which  is 
matter  of  opinion  ;  and  witnesses,  if  they  could  have  sight  of  the 
person,  might  be  indefinitely  multiplied,  without  affording  any  satis- 
factory ground  of  judgment  for  a  jury.  Witnesses,  except  in  some 
art,  trade  or  profession,  requiring  skill  or  science,  are  not  called  on  for 
comparison  and  to  testify  to  opinions  arising  from  them.  The  facts 
being  proved,  the  jury  were  better  judges  of  the  effect  of  similarity 
or  dissimilarity  in  form  of  complexion.1 

Same  —  rule  in  Indiana. 

§  63.  On  the  trial  of  an  Indiana  case  of  bastardy,  the  State  gave 
the  bastard  child  in  evidence,  so  the  jury  might  compare  it  with  the 
defendant,  who  was  present ;  this  went  to  the  jury  without  objection, 
and  the  court  instructed  the  jury  that,  if  they  discovered  a  resem- 
blance between  the  child  and  the  defendant,  they  might  regard  it  as 
a  circumstance  tending  to  prove  its  paternity  —  tending  to  prove  that 
the  defendant  was  the  father  of  it.  The  court  said  :  "  We  doubt 
the  right  to  introduce  the  child  in  evidence.  We  have  seen  no  au- 
thority on  the  point.  It  would  be  an  uncertain  rule  of  evidence. 
It  would  involve  the  necessity  of  giving  the  alleged  father  in  evidence , 
A  child  changes  often  and  much  in  looks  in  the  first  three  months 
of  its  existence.  But,  in  this  case,  as  the  evidence  went  in  without 
objection,  the  jury  had  a  right  to  consider  it."2  This  rule  of  evidence 
is  not,  by  any  means,  to  be  regarded  as  safe  and  certain,  and  not 
well  settled,  owing,  perhaps,  to  the  fact  that  in  this  country  those 
cases  seldom  occur. 

Seduction  —  administering  drugs. 

§  64.  A  defendant  was  indicted  in  Iowa,  in  1878,  for  unlawfully 
having  carnal  knowledge  of  a  female  by  administering  to  her  a  sub- 
stance and  by  other  means  producing  such  stupor  and  imbecility  of 
mind  and  weakness  of  body  as  to  prevent  effectual  resistance. 
He  was  convicted  and  sentenced  to  the  penitentiary  for  ten  years. 
The  evidence  in  substance  was  that  she  was  sixteen  years  of  age, 

1  Keniston  v.  Rowe,  16  Me.  39.  »  Risk  v.  State,  19  Ind.  152. 


IDENTIFICATION  OF  PERSONS.  39 

went  in  the  evening,  December  21,  with  her  brother  Fred  to  Linn- 
ville  to  meeting,  returning  in  their  sleigh.  Defendant  called  to 
Fred,  and  they  took  a  drink  of  liquor.  Defendant  got  into  the  sleigh 
with  them,  they  took  another  drink,  and  at  her  brother's  request  she 
tasted  it.  The  sleigh  broke  down,  her  brother  took  charge  of  it,  and 
she  walked  on  with  defendant.  Knew  nothing  more  until  about 
midnight,  when  she  awoke  to  find  herself  in  defendant's  saloon,  in 
Searsboro,  sitting  on  a  bench  with  her  head  on  his  shoulder,  his  arm 
around  her,  and  her  drawers  unfastened.  The  door  was  locked,  but 
he  finally  unlocked  it ;  she  knew  by  a  smarting  sensation  that  he  had 
had  intercourse  with  her ;  but  was  unconscious  of  it  at  the  time. 
He  took  her  into  his  house  where  his  wife  was.  On  the  way  to  the 
house  he  said  :  "  I  am  up  to  this  kind  of  business."  She  made  no 
complaint  for  sixteen  weeks  afterward.  In  due  time  she  was  a 
mother.  The  State  offered  on  the  trial  to  exhibit  the  child  to  the 
jury,  and  this  was  permitted,  and  the  cause  was  reversed.1 

But  as  to  exhibiting  a  child  to  a  jury  on  trial  for  bastardy,  the 
courts  are  not  agreed ;  but  the  weight  of  authority  seems  to  be  that 
it  may  be  permitted.  It  has  been  frequently  so  held  in  North  Caro- 
lina, and  there  seems  to  be  no  good  reason  why  it  should  not  be  the 
general  rule. 

Bastardy  —  criminal  conversation  —  damages  —  identity. 

§  65.  In  an  action  by  the  husband  for  damages  for  criminal  con- 
versation with  the  wife  of  the  plaintiff,  the  wife  was  a  witness  in 
the  case,  for  the  plaintiff,  and  gave  her  evidence  to  the  effect  of  her 
acts  of  intimacy  with  the  defendant.  The  child  alleged  to  be  that 
of  the  defendant,  and  the  result  of  such  intimacy,  was  given  in  evi- 
dence and  shown  to  the  jury  on  the  trial,  to  show  the  resemblance  of 
its  alleged  father.  The  following  instruction  to  the  jury  was  held 
to  be  correctly  given,  to- wit :  "  If  you  believe  that  the  child  of  plain- 
tiff's wife,  shown  to  you  during  the  trial,  resembles  the  defendant, 
and  experience  teaches  you  that  there  is  any  thing  reliable  in  this 
appearance  that  would  be  safe  for  you  to  form  an  opinion  on,  you 
may  consider  it  in  corroboration  of  her  testimony."2  This  was  a  pe- 
culiar case,  not  only  in  its  inception,  but  in  the  nature  of  the  evidence 
to  sustajn  it.  An  action  for  criminal  conversation  seldom  involves 
the  question  of  the  identity  of  a  child,  as  is  the  case  in  a  prosecution 
for  bastardy,  and  even  in  that  class  of  cases  the  courts  are  not  agreed 

'  State  v.  Danfortb,  48  Iowa,  43.  *  Stumm  v.  Hummel,  39  Iowa,  479. 


40  THE  LAW  OF  IDENTIFICATION. 

as  to  the  rule,  for  we  find  in  Maine  it  is  held  inadmissible  in  a  case 
of  bastardy  to  introduce  the  child  in  evidence,  to  show  the  jury  a 
resemblance  between  the  child  and  the  alleged  father.  Because,  the 
court  said,  the  resemblance  was  matter  of  opinion,  and  could  be  given 
only  by  experts,  and  other  witnesses  are  not  called  upon  to  make 
comparisons  and  give  opinion.1  The  same  rule  was  held  substantially 
in  Indiana.  But  it  was  rejected  there  apparently  for  want  of  pre- 
cedent. The  court  said :  "  We  doubt  the  right  to  introduce  the  child 
in  evidence.  We  have  seen  no  authority  on  the  point.  It  would  be 
an  uncertain  rule  of  evidence.  It  would  involve  the  necessity  of 
giving  the  father  in  evidence."  But  in  that  case,  as  it  had  gone  to 
the  jury  without  objection,  the  court  did  not  disturb  the  verdict.2 
But  in  North  Carolina  the  rule  of  practice  is  well  settled  that  the 
child  may  be  produced  in  evidence  on  the  trial ;  in  a  number  of  cases 
commencing  as  early  as  1844,  and  has  been  strictly  adhered  to  in 
that  State  in  quite  a  number  of  cases,  and  the  court  regards  it  as 
based  upon  the  very  best  reason,  and  decline  to  change  the  ruling.3 

Legitimacy  —  bastardy  —  rule  in  North  Carolina. 

§  66.  It  was  held  in  North  Carolina,  that  the  mother  of  a  child, 
her  husband,  the  alleged  father,  being  dead,  was  a  competent  wit- 
ness to  prove  the  legitimacy  of  the  child,  and  that  where,  on  the 
trial  of  an  action,  the  legitimacy  of  a  child  is  involved,  who  is 
alleged  to  be  of  mixed  blood,  it  is  not  improper  to  exhibit  the  child 
to  the  jury.4  In  the  same  State,  it  seems  to  be  the  settled  practice 
in  bastardy  cases,  to  bring  the  child  into  court,  that  the  jury  may  com. 
pare  it  with  the  alleged  father ;  and  where,  on  the  trial  of  one  of  these 
cases,  the  mother  was  put  upon  the  stand  as  a  witness,  having  the 
child  in  her  arms,  the  solicitor  called  the  attention  of  the  jury  to  the 
child's  features,  and  afterward,  in  his  address  to  the  jury,  commented 
upon  its  appearance,  etc.,  all  without  objection  by  the  defendant,  it 
was  held  that  the  objection  came  too  late  after  verdict.  And  it  was 
not  error  for  the  judge  to  charge  that  the  jury  might  take  the  ap- 
pearance of  the  child  into  consideration  and  give  it  whatever  weight 
they  thought  it  entitled  to. 

Speaking  of  this,  the  court  said :  "  It  certainly  has  been  the  prac- 
tice to  admit  such  evidence  on  the  trial  of  such  cases,  both  in  the 

1  Keniston  v.  Rowe,  16  Me.  39.  ruff,  67  id.  89;  Warlick  v.  White,  76  id. 

»  Risk  v.  State,  19  Ind.  152.  175. 

»  State  v.  Britt,  78  N.  C.   439;  State        «  Warlick  v.  White,  76  N.  C.  175. 
v.  Bennett,  75  id.  305;  State  v.  Wood- 


IDENTIFICATION  OF  PERSONS.  41 

County  and  Superior  Courts,  for  more  than  forty  years,  without  objec- 
tion, and  this  court  is  not  disposed  to  change  a  rule  of  evidence  so 
long  and  so  universally  acquiesced  in,  and  founded,  as  we  think,  in 
reason  and  common  observation."1 

Bastardy  —  identity  -    rule  of  evidence. 

§  67.  It  was  held  that,  on  the  trial  of  a  prosecution  for  bastardy, 
evidence  that  the  prosecutrix  had  criminal  intercourse  with  another 
man  about  the  time  when,  in  the  course  of  nature,  the  child  must 
have  been  begotten,  and  that  such  intercourse  was  habitual,  was  ad- 
missible ;  and,  on  such  trial,  evidence  that  the  child  resembles  the 
man  with  whom  such  alleged  intercourse  was  had  is  admissible.2 
This  might  bring  the  "  other  fellow  "  into  court. 

Bank  check  —  false  representation  —  risk. 

§  68.  If  the  drawee  of  a  check  relies  upon  false  representations  as 
to  identity,  for  which  neither  the  drawer  nor  the  drawee  is  respon- 
sible, he  makes  payment  to  a  wrong  person  at  his  peril.  "Where  the 
drawee  attempts  to  justify  payment  to  a  person  not  bearing  the 
name  of  the  payee,  upon  his  authorized  indorsement  of  the  payee's 
name,  on  the  ground  that  he  was  the  person  to  whom  the  drawer 
intended  payment  to  be  made,  though  described  by  a  false  name  — 
all  the  facts  in  regard  to  such  intention  being  unknown  to  the  drawee 
at  the  time  of  payment  —  he  cannot  be  allowed  to  prove  a  portion  of 
the  facts  occurring  at  the  time  of  drawing  the  check,  and  insist  upon 
excluding  other  material  facts  occurring  at  the  same  time,  when  such 
facts  have  a  tendency  to  disprove  the  existence  of  such  intention.3 

Eetailing  and  larceny  —  personal  identity. 

§  69.  One  Snow  was  indicted  and  tried  in  three  cases  as  a  common 
seller  of  intoxicating  liquor.  Two  sales  were  proved,  and  a  witness 
testified  that  he  bought  liquor  at  the  same  place,  "  of  a  man  they 
called  Snow,"  who  was  "pretty  near  like"  the  defendant,  but  whom 
he  would  not  swear  to  be  the  defendant.  This  was  held  insufficient 
for  the  third  sale.4  And  yet,  in  a  more  recent  case  in  the  same 
State,  which  was  an  indictment  for  larceny,  it  was  held  that  on  the 
trial  of  a  criminal  case,  where  the  only  question  is  that  of  the  iden- 

1  State  v.  Woodruff,  67  N.  C.  89.    But  382;   State  v.  Woodruff,  67  N.   C.  89; 
see  Outlaw  v.  Hurdle,  1  Jones  L.  150;  Warlick  v.  White,  76  id.  175;  State  v. 
State  v.  Jacobs,  5  id.  259.  Bennett,  75  id.  305.     But  see  Keniston 

2  State  v.  Britt,  78  N.  C.  439.     Citing  v.  Rowe,  16  Me.  38. 

State  v.  Patton,  5  Ired.  180;  State  v.  Wil-        3  Dodge  v.  Bank,  30  Ohio  St.  1. 
son,  10  id.  131;  State  v.   Floyd,  13  id.        4Com.  v.  Snow,  14  Gray,  385. 


42  THE  LAW  OF  IDENTIFICATION. 

tity  of  the  defendant  with  the  perpetrator,  the  jury  may  be  war- 
ranted in  finding  him  guilty,  though  no  witness  will  swear  positively 
to  his  identity.1  As  a  legal  proposition  that  is  true,  —  persons  are 
often  identified  by  circumstances. 

Circumstantial  evidence  of  personal  identity— rule  in  Massachusetts. 
§  70.  On  the  trial  of  an  indictment  for  robbery,  the  person- 
robbed  testified  she  was  robbed  of  a  ten  dollar  bill  and  three  two 
dollar  bills,  but  she  could  not  say  whether  they  were  bank  bills  or 
not.  When  the  defendant  was  arrested,  three  days  thereafter, 
he  had  in  his  pocket  two  five  dollar  bills  and  two  two  dollar 
bills,  one  of  which  was  a  bank  bill  and  the  others  not.  The  per- 
son robbed  had  testified  that  in  the  struggle  with  the  robbers 
she  bit  the  finger  of  one  of  them  so  as  to  cause  a  wound,  and  when 
arrested  there  was  a  wound  upon  the  corresponding  finger  of  the  de- 
fendant's hand,  and  there  was  a  stain  on  one  of  the  bills,  which,  the 
government  Contended,  was  a  blood-stain.  Suppose  it  was  a  blood- 
stain ;  it  is  difficult  to  perceive  how  that  could  benefit  the  prosecution. 
If  he  were  the  robber,  he  had  changed  off  her  money,  as  that  found 
in  his  possession  was  not  the  bills  she  described,  nor  did  it  correspond 
in  amount.2 

Larceny  of  a  package  of  money  —  identity  of  the  thief. 

§  71.  One  Whitman  in  Massachusetts  was  indicted  for  stealing  a 
package  of  money  in  a  most  ingenious  manner.  The  package  was 
sent  by  a  messenger  boy  in  Boston  to  one  Drew,  a  constable  in  Joy's 
building,  to  pay  off  an  execution ;  the  boy  carried  the  money  in  an 
envelope,  and  with  it  a  receipt,  to  be  signed  by  Drew.  On  the  trial, 
the  boy  was  asked  if  there  were  any  one  in  the  office  ;  he  said  "  yes ;" 
"  who  was  it  ? "  the  boy  answered,  "  that  man,"  pointing  to  the  de- 
fendant. Objection  made  and  overruled.  The  witness  then  testified 
that  he  asked  the  man  if  he  were  G.  G.  Drew ;  that  he  said  "  no  ;"  he 
asked  when  he  would  be  in ;  he  replied,  "  he  will  be  in  soon,  right 
in  ;"  that  he  asked  him  if  he  were  going  to  stay  till  Drew  came  in ; 
to  which  he  replied  "  yes ;"  that  he  then  laid  down  the  package  on 
the  table,  took  out  the  receipt  and  asked  him  if  he  would  sign  it ; 
that  he  signed  it  in  pencil  "  G.  G.  Drew  by  Geo.  Jones,"  and  that 
he  would  not  have  left  the  package  without  the  receipt.  This  was 
sufficient  identification.3 

1  Com.  v.  Cunningham,  104  Mass.  645.         »  Com.  v.  Whitman,  121  Mass.  361. 
9  Com.  v.  Tolliver,  119  Mass.  312. 


IDENTIFICATION  OF  PERSONS.  43 

Fictitious  appeal  bond  —  indictment. 

§  72.  On  an  indictment  for  forging  and  uttering  an  appeal  bond, 
the  government  offered  evidence  tending  to  show  that  the  name  of  one 
of  the  sureties  affixed  to  the  bond  was  fictitious,  by  proving  who  the 
person  really  was  who  represented  himself  by  the  fictitious  name, 
to  the  clerk  of  the  court  in  which  the  bond  was  given,  and  that  his 
statements  as  to  his  business,  residence,  occupation  and  ownership  of 
property  were  all  false.  It  was  held  that  the  evidence  was  competent, 
although  the  defendant  admitted  that  the  name  was  fictitious.1 

Rape  —  identity  of  accused  —  clothes. 

§  73.  On  the  trial  of  a  party  in  Massachusetts  for  rape,  after  evi- 
dence given  of  a  fresh  pursuit  of  the  accused,  from  the  description 
of  him  as  given  by  the  prosecutrix,  and  by  inquiries  made  by  the 
pursuer,  describing  his  dress,  by  which  information  was  obtained 
which  led  to  his  arrest,  the  testimony  of  the  person  inquired  of  by 
the  pursuer  was  admissible  in  evidence  for  the  defendant,  to  show 
that  the  dress  so  described  differed  from  that  worn  by  him  at  that 
time.  The  court  remarked  :  "  One  object  of  the  testimony  intro- 
duced by  the_  government  was  to  identify  the  person  arrested  with 
the  person  committing  the  offense.  It  sought  to  show  identity  by 
evidence  of  a  fresh  pursuit  of  the  prisoner,  from  the  description 
given  by  the  prosecutrix,  and  of  inquiries  made  by  the  pursuer  for 
the  person  charged,  by  the  description  of  the  dress.  The  force  of 
this  evidence  the  prisoner  sought  to  avoid  by  showing  what  in- 
quiries were  made,  and  then  proving  that  the  dress  described  by  the 
person  pursuing  was  different  from  that  actually  worn  by  him  on 
that  day."  It  was  held  that  he  had  a  right  to  do  so,  and  the  judg- 
ment of  the  court  below,  convicting  him,  was  reversed.2 

Threat  to  take  life  —  verdict. 

§  74.  Defendant  was  indicted  for  threatening  to  take  the  life  of 
L.  Curry,  and  sentenced  to  the  penitentiary  for  three  years.  The 
verdict,  as  it  appeared  in  the  record,  found  the  defendant  "  guity," 
and  the  conviction  was,  for  this  reason,  reversed.  Subsequently,  a 
new  record  was  brought  up  on  certiorari,  which  had  not  the  same 
defect,  and  the  judgment  was  affirmed.  The  court  said :  "  The 
language,  it  will  be  observed,  with  regard  to  the  character  of  the 
verdict,  that  is,  that  they  (the  jury)  shall  find  that  the  defendant  is 
either  '  guilty  '  or  '  not  guilty,'  is  imperative.  Have  the  jury  per- 

1  Com.  v.  Costello,  120  Mass.  359.  *  Com.  v.  Reardon,  4  Gray,  430. 


44  THE  LAW  OF  IDENTIFICATION. 

formed  this  duty  ?  Is  the  word  '  guity '  synonymous  with  or 
equivalent  to  the  word  *  guilty  ' —  is  it  idem  sonans  with  the  word 
'  guilty  ? '  Is  there  such  a  word  as  '  guity '  belonging  to,  or  having 
a  definition  in,  the  English  language  ?  We  are  compelled  to  answer 
each  of  these  questions  in  the  negative."1 

Circumstantial  evidence  of  identity. 

§  75.  In  an  action  of  trespass  for  taking  a  piano  forte  which  the 
plaintiff  had  bought  from  one  L.,  defendant  pleaded  that  it  be- 
longed to  him,  and  had  been  feloniously  stolen  from  him  by  L.,  and 
that  he  had  retaken  it.  It  was  held  that  whatever  would  be  evi- 
dence against  L.,  if  he  were  on  trial  for  the  felony,  would  be  evi- 
dence in  this  action  to  prove  the  felony  to  have  been  committed  by 
L.,  it  being  open  that  L.  had  committed  the  felony  by  hiring  the 
piano  forte,  and  selling  it  immediately.  It  was  held  that  the  defend- 
ant could  not  give  evidence  respecting  optical  instruments  which 
were  alleged  to  have  been  obtained  by  L.  from  another  tradesman ; 
but  his  identity  became  involved  in  the  piano  transaction,  and  de- 
pended upon  circumstantial  evidence.  And  it  was  held  that,  where 
a  cartman  took  goods  to  the  house  of  L.,  not  knowing  him,  and 
asked  for  Mr.  L.,  of  a  person  whom  he  found  in  the  house,  and  that 
person  said  "  I  am  Mr.  L.,"  this  was  prima  facie  evidence  of  the 
identity  of  Mr.  L.2 

Personal  appearance  —  human  identity  —  evidence. 

§  76.  The  personal  appearance  of  a  person  may  indicate  youth  or 
age,  but  it  is  not  evidence  of  either.  One  Stephenson  was  indicted 
for  profanation  of  the  Sabbath  by  following  his  usual  occupation  on 
that  day  in  violation  of  the  statute  —  the  statute  imposing  a  penalty 
for  its  violation  by  persons  of  the  age  of  fourteen  years  and  upwards. 
In  such  case,  the  proof  must  be  made  that  the  accused  is  within  the 
age  prescribed  by  statute.  He  was  present  in  court  and  was  con- 
victed, without  any  proof  of  his  age  except  his  personal  appearance, 
and  that  was  not  put  in  evidence,  nor  did  it  go  upon  the  record  sent 
up  on  writ  of  error,  nor  could  it  be  brought  up  by  certiorari.  The 
judge  certified  that  he  was  in  court  and  had  the  appearance  of  a  full- 
grown  man.  This  could  not  be  received  ;  it  was  not  proved  on  the 
trial.3  And  in  an  indictment  for  selling  liquor  to  a  minor  in  viola- 
tion of  the  statute,  on  the  trial,  the  party  to  whom  the  liquor  was 

1  Taylor  v.  State,  5  Tex.  App.  569.  3  Stephenson  v.  State,  28  Ind.  272. 

*  Wilton  v.  Edwards,  6  Carr.  &  P.  677. 


IDENTIFICATION  OF  PERSONS.  45 

sold,  testified  that  he  was  eighteen  years  of  age,  about  six  feet  high, 
and  weighed  about  one  hundred  and  seventy-five  pounds.  The 
question  was  whether  the  liquor  dealer  sold  it  to  him  in  good  faith ; 
and  was  his  appearance  that  of  a  person  full  twenty-one  years  of 
age  ?  The  liquor  was  sold  to  him  upon  his  deceptive  appearance. 
It  was  taken  for  granted  that  he  was  not  a  minor ;  as  in  the  above 
case  the  court  took  it  for  granted  that  a  full-grown  man  was  up- 
wards of  fourteen  years.1 

1  Hunger  v.  State,  53  Ind.  251. 


THE  LAW  OF  IDENTIFICATION. 


CHAPTER  III. 


NAME  —  IDEM  SONANS. 


SEC.  SEC. 

77.  Names  —  words  —  idem  sonans  —     109. 

verdict. 

78.  Misnomer — abbreviation— recogniz-     110. 

ance. 

79.  Same  —  indictment  for  a  nuisance.     111. 

80.  Christian  name  —  initial  letter.          112. 

81.  First  name  omitted  —  effect — abate- 

ment. 113. 

82.  Misnomer  —  abatement  —  addition 

—  surname.  114. 

83.  Militia  —  execution —  wrong  name. 

84.  Misnomer — defective  orthography.     115. 

85.  Bond  —  names  —  sureties  — rule  in 

Illinois.  116. 

86.  Names — not  idem  sonans—  "Henry" 

and  "Harry."  117. 

87.  Misspelled    name  —  firm  name  — 

strictness.  118. 

88.  Name  —  idem  sonans  —  larceny. 

89.  Same  —  bigamy  —  name  of  wife.        119. 

90.  Names  —  spelling  —  sound  alike — 

idem  sonans.  120. 

91.  Suit  on  check  —  identity  of  bank. 

92.  Promissory  note  —  to    cashier  of     121. 

bank  —  rule  in  Indiana. 

93.  Note  in  bank  — indorsement — iden-     122. 

tity  of  bank  and  cashier. 

94.  Note  —  where  payable  —  silent  —     123. 

presumption. 

95.  Idem  sonans — verdict — indictment.     124. 

96.  Same  —  indictment  —  assault  and 

battery.  125. 

97.  Corporation  —  name  of  railroad  — 

rule  as  to.  126. 

98.  Name  of  indorser  —  witness  —  de-     127. 

fendant.  128. 

99.  Same  —  identity  of  name  — person.     129. 

100.  Identity  —  plaintiff's  name  —  "Lu- 

buke"  and  "Lubukee."  130. 

101.  Introduction  by  name  —  fraud. 

102.  Land  certificates  —  deeds  —  names.     131. 

103.  Deed  to  land  —  married  women.         132. 

104.  Verdict  —  incorrect  orthography — 

effect.  133. 

105.  Same  —  defective  orthography  — 

when  not  fatal.  134. 

106.  Names  in   actions  —  rule  in  Eng- 

land —  identity.  185. 

107.  Report  of  death  —  identity  of  plain- 

tiff. 136. 

108.  Identity  of  plaintiff  by  name. 


Parties  to  actions  —  identity  of  — 
general  rule. 

Same  —  grantor  —  initials  —  de- 
ceased plaintiff. 

Name  —  person  —  presumption. 

Malicious  mischief  —  boys  —  iden- 
tified in  court. 

Proof  of  identity — letters — ancient 
documents. 

Soldier  —  name  —  land  patent  — 
family  record. 

Name  —  presumption  —  proof  of 
signature. 

Name  —  proof  —  deed  —  presump- 
tion —  identity. 

Identity  of  name  —  when  sufficient 
to  identify  the  person. 

Junior  —  middle  letter  —  name  — 
immaterial  variance. 

Identity  of  name  — goods  delivered 
to  a  swindler. 

Same  —  goods  delivered  —  same 
name. 

Identity  of  stranger  by  name 
merely. 

Same  name  —  father  and  son  — 
rule. 

Weight  of  evidence  as  to  identity 
—  indictment. 

Name  —  presumption  of  identity- 
burglary. 

Forgery  —  opinion  evidence  —  sig- 
nature. 

Inference  or  conclusion  —  opinion. 

Liability  assumed  by  a  stranger. 

Courts  will  not  presume  identity. 

Name  —  rule  in  election  cases  — 
contest. 

Same  —  elections  —  rule  in  several 
States. 

Same  —  contest  for  office  —  rule. 

In  a  contested  election  case  in 
Michigan. 

Application  of  the  rule  —  idem 
sonans. 

Name  in  indictment  —  variance  — 
where  immaterial. 

Murder  —  name  of  deceased — idem 
sonans  —  rule. 

Larceny  —  assault  —  name  of  in- 
jured person. 


NAME  —  IDEM  SONANS.  47 

SEC.  SEC. 

137.  Larceny  —  name  of  owner  —  rule     139.  Growing  importance  of  idem  sonana 

in  Texas.  —  rule. 

138.  Retailing  —  name  of  the  vendee. 

Names  —  words  —  idem  sonans  —  verdicts. 

§  77.  The  doctrine  of  idem  sonans,  as  applied  to  the  names  of 
persons,  frequently  presents  very  nice  questions.  "Where  the  names 
sound  alike,  though  entirely  different  names,  and  spelled  differently, 
that  is,  to  the  sense  of  sight  they  differ,  while  to  the  sense  of  hearing 
they  are  the  same,  then  they  are  held  to  be  idem  sonans.  And  the 
courts  will  not  set  aside  proceedings  on  account  of  the  misspelling 
of  names,  provided  the  variance  is  so  trifling  as  not  to  mislead,  or 
the  name  as  spelled  be  idem  sonans;  as  Wallace  for  "Wallis  ;  Law- 
rence for  Lawrence  ;  Benedetto  for  Benedetto  ;  Renells  for  Eeynolds; 
Magee  for  McGee.  The  following  are  a  few  of  the  names  which 
have  been  held  not  to  be  idem  sonans:  Barham  for  Barnham;1 
Shutliff  for  Shirtliff  ;2  Shakepear  for  Shakespeare  ;3  Richard  John 
for  John  Richard  ;4  Lyons  for  Lynes  ;5  Anstry  for  Anestry  ;6  Tar- 
bart  for  Tabart;7  Oawley  for  Crowley  ;8  M'Cann  for  M'Carn;9 
Willison  Franklin  for  Williston  Franklin.10  And  this  rule  applies  as 
well  to  words  as  to  names.  "When  words  are  incorrectly  spelled  in 
the  verdict  of  a  jury,  they  will  not  vitiate  the  verdict  if  they  are 
idem  sonans,  as  mrder  for  murder;  turn  for  term;  too  for  two. 
But  the  verdict  for  damages  was  void  when  given  for  impunitive 
damages,  or  where  a  burglar  was  found  guilty  of  bergellery,  or  where 
the  defendant  was  found  guity  instead  of  guilty y  because,  in  the 
three  last  examples  there  are  no  such  words  in  the  English  language. 
Where  words  in  the  verdict  are  idem,  sonans,  the  courts  hold  that 
the  variance  is  immaterial,  and  the  verdict  is  good.  But  it  will  be 
void  if  words  are  used  which  are  senseless,  unintelligible  or  of  doubt- 
ful import,  because  in  such  case  the  verdict  does  not  find  the  defendant 
"  guilty "  or  "  not  guilty."11  And  in  all  criminal  cases  where  the 
jury  agree  upon  a  general  verdict,  it  must  be  that  the  defendant  is 
either  "  guilty  "or  "  not  guilty." 

1  Kirk  v.  Suttle,  6  Ala.  (N.  S.)  681.  8  Arch.  Cr.  PI.  &  Ev.  342. 

2  Gordon  v.  Austin  4  Term  Rep.  611.          9  Rex  v.  Tannet,  Russ.  &  Ry.  351. 

3  Rex  v.   Shakespeare,  10  East  Rep.  10  Bull  v.  Franklin,  2  Speer,  46. 
(Eng.)  83.  "  Shaw  v.  State,   2  Tex.  App.  487; 

4  1  Chitty  PI.  314.  Haney  v.  State,  id.  504;  Dillon  v.  Rog- 
B  Lynes  v.  State,  5  Porter  (Ala.),  241.     ers,    36  Tex.   152 ;  Keeller  v.   State,  4 

•  Bro.  Var.  (Eng.)  20.  Tex.  App.  527. 

*  Bingham  v.  Dickie,  5  Taunt.  814. 


48  THE  LAW  OF  IDENTIFICATION. 

Misnomer — abbreviations  —  recognizance. 

§  78.  "  Bart "  and  "  Bartholomew  "  are  not  the  same  names,  and 
it  will  not  be  presumed,  without  averment,  that  the  former  is  an 
abbreviation  of  the  latter  name.  A  bill  of  exchange  sued  on  was 
payable  to  "Bart  Whalon  "  at  Edgar  County  Bank,  and  indorsed 
"  B.  Whalon."  The  special  count  alleged  that  the  bill  of  exchange 
was  drawn  in  favor  of  Bartholomew  "Whalon,  and  contained  no  alle- 
gation that  "  Bart  Whalon  "  and  "  Bartholomew  Whalon  "  were  one 
and  the  same  person.1  An  action  was  brought  on  a  promissory  note 
against  one  Loring  Pickering.  The  declaration  averred  that  the 
defendant  made  and  executed  the  note  sued  upon.  To  support  this 
declaration  plaintiff  introduced  on  the  trial,  and  offered  in  evidence, 
a  note  signed  by  "  L.  Pickering"  It  was  objected  to  for  variance  ; 
but  it  was  read,  and  no  other  evidence  was  offered  by  plaintiff  to 
support  his  action.  It  was  held  not  to  be  a  substantial  variance.2  In 
a  similar  case,  the  principal  named  in  the  body  of  a  recognizance 
was  "  Joseph  Little ; "  it  was  executed  in  the  name  of  "  Joseph 
Lytle."  It  was  held  not  to  be  error  to  admit  such  recognizance  as 
evidence  under  the  scire  facias  against  ' '  Joseph  Lytle,"  reciting 
the  execution  of  the  recognizance  by  the  latter  name.3  And  so  in 
describing  a  promissory  note  payable  to  "  Conklon  "  as  being  pay- 
able to  "  Conklin,"  was  held  to  be  unimportant,  that  they  were  the 
same  sound.4 

Same  —  indictment  for  a  nuisance. 

§  79.  A  party  was  sued  by  the  name  of  Thomas  Perkins,  junior, 
for  a  nuisance  under  the  statute  against  gaming.  He  pleaded  in 
abatement,  that  his  name  was  Thomas  Hopkins  Perkins.  To  this 
the  county  attorney  demurred  generally,  and  there  was  a  judgment 
of  respondeat  ouster,  and  trial  on  the  issue,  and  appeal.  The  court 
said  :  "  It  is  eaid,  on  the  part  of  the  Commonwealth,  that  junior  is 
no  part  of  the  name.  This  is  true,  but  another  objection  to  this  in- 
dictment is,  that  the  defendant  is  called  Thomas,  instead  of  Thomas 
Hopkins.  In  5  D.  &  E.  195,  a  person  was  sued  by  the  Christian 
name  of  James  Richard  instead  of  Richard  James,  and  it  was 
held  misnomer  on  account  of  the  transposition.  The  indictment 
must  give  the  defendant  his  Christian  name."8 

1  Curtis  v.  Marrs,  29  111.  508.  »  Lytle  v.  People,  47  111.  422. 

»  Pickering  v.  Polsifer,  4  Gilm.  (111.)        4  Cutting  v.  Conklin,  28  111.  508. 
79.  •  Com.  v.  Perkins,  1  Pick.  888  (1823). 


NAME  —  IDEM  SONANS.  49 

Christian  name  —  initial  letter. 

§  80.  Defendant  was  fined  by  a  justice  of  the  peace  for  neglect- 
ing to  appear  at  a  meeting  of  a  militia  company.  At  the  trial  the 
complainant  produced  the  book  of  enrollment  of  the  company, 
which  contained  the  name  of  Charles  Hall,  but  not  the  name  of 
Charles  Jones  Hall,  the  true  name  of  the  respondent.  Upon  this 
the  court  laid  down  the  rule  thus :  "  The  roll  of  White's  company  con- 
tained the  name  of  Charles  Hall,  but  not  the  name  of  Charles  Jones 
Hall.  Charles  Jones  is  the  respondent's  Christian  name.  It  needs  no 
argument  to  prove  that  Charles  and  Charles  Jones  are  different 
names.  The  respondent,  therefore,  was  not  duly  enrolled  in  the 
company  of  which  the  complainant  claims  to  be  clerk.|  But  it  is 
now  held  in  New  York  and  other  States  that  the  middle  letter  is 
no  part  of  the  person's  name,  and  where  the  plaintiff  sued  in  an  ac- 
tion of  trespass  quare  clausum  fregit,  and  declared  in  the  name  of 
William  Robinson,  and  the  deed  under  which  he  claimed  title  to  the 
locus  in  quo  was  to  William  F.  Robinson,  this  variance  was  held  to 
be  immaterial.2  In  an  action  of  ejectment,  there  was  an  objection 
raised  to  a  deed  executed  by  Margaret  Gittings  ;  it  was  shown  that 
her  name  in  the  body  of  the  deed  was  written  Margaret  A.  Gittings, 
and  her  signature  to  the  deed  was  Margaret  S.  Gittings,  her  real  name. 
This  was  held,  by  clear  intendment,  to  be  an  immaterial  variance.3 

First  name  omitted  —  effect  —  abatement. 

§  81.  One  Martin  being  indicted  for  gaming  in  the  name  of  Wil- 
liam Martin,  he  pleaded  in  abatement  that  his  name  was  John  Wil- 
liam Martin,  and  that  he  was  so  known  and  called,  etc.  The  State's 
attorney  demurred,  which  was  overruled,  and  the  cause  went  to  the 
Supreme  Court,  where  it  was  said :  "  It  has  been  held,  and  we 
think  correctly,  that  the  middle  name  of  an  individual  forms  no 
part  of  his  Christian  name.  If  this  be  correct,  then  the  indictment 
cannot  be  sustained,  as  it  only  sets  out  the  middle  name  and  does 
not  give  the  Christian  name  at  all.  Difficulties  and  confusion  fre- 
quently arise,  growing  out  of  the  multiplicity  of  names  given  to  in- 
dividuals, and  by  which  they  are  known ;  to  obviate  this,  they 
should  be  named  as  they  are  generally  called  in  society,  and  then  if 
they  plead  in  abatement,  the  plaintiff  can  reply  the  facts  and  main- 
tain his  action."* 

1  Com.  v.  Hall,  3  Pick.  262  (1825).  4  State  v.  Martin,  10  Mo.  391.     Citing 

2  Franklin  v.Talmadge,  5  Johns.   84.     Jones  v.  Macquillin,  5  Term  Rep.  195 
8  Erskine  v.  Davis,  25  111.  251. 


50  THE  LAW  OF  IDENTIFICATION. 

Misnomer  —  abatement  —  addition  —  surname. 

§  82.  An  action  was  brought  in  England  for  words,  against  Ben- 
jamin "Walden ;  lie  pleaded  in  abatement  that  his  name  was  John, 
and  by  that  name  he  was  called  and  known,  and  that  his  surname 
was  "  Benjamin  Walden."  HOLT,  C.  J.,  said  :  "  One  may  have  a 
nomen  and  a  cognomen  that  never  was  baptized,  and  thousands  in  fact 
have  ;  also  one  may  be  baptized  by  the  name  of  A.  and  be  confirmed 
by  the  name  of  B.,  as  Sir  Francis  Gaudy  was,  not  that  he  thought 
the  first  name  ceased ;  also  he  thought  it  would  not  be  a  sufficient 
answer  to  the  defendant  to  say  he  was  baptized  by  the  name  of  A., 
without  averring  also,  that  he  was  ever  called  and  known  by  that 
name.  But  supposing  it  had  been  a  sufficient  answer  without  more, 
yet  saying  he  was  baptized,  etc.,  was  nothing  more  than  an  inducement, 
which  is  waived  by  the  traverse,  so  that  the  effect  of  the  plea  is  that 
the  defendant  was  never  called  by  the  name  of  A.  B.,  and  the  chief 
justice  said  that  the  traverse  was  material  and  likewise  the  induce- 
ment."1 Where  a  declaration  alleged  that  a  note  was  made  by  the 
defendant,  by  the  name  of  "  Samuel  Headly,"  and  the  note  offered 
in  evidence  was  signed  "  Samuel  Headly,  Jr."  it  was  held  to  be  no 
variance ;  the  "  Jr."  added  to  a  person's  name  is  no  part  of  his  name; 
it  is  a  mere  addition.2 

Militia  —  execution  —  wrong  name. 

§  83.  An  action  of  trespass  was  brought  against  a  defendant  in 
Vermont,  in  1830,  to  recover  a  small  quantity  of  clothing,  which,  on 
trial,  it  appeared  was  sold  to  Sanborn,  one  of  the  defendants,  on  a 
pretended  execution,  issued  by  Cornelius  Stilphin,  Jr.,  as  captain  of 
a  militia  company,  on  an  amercement  of  the  said  Brainard  for  de- 
linquency in  military  duty.  Defendant  pleaded  the  general  issue 
with  notice  ;  and  offered  in  evidence  the  execution  against  Brainard, 
signed  by  the  said  Stilphin,  to  which  the  plaintiff  objected,  because  it 
did  not  appear  that  the  amercement  was  made  by  Cornelius  Stilphin, 
Jr.,  but  by  Cornelius  Stilphin,  captain,  etc.,  and  the  same  was  ex- 
cluded by  the  court.  Defendant  then  offered  to  prove  by  parol  that 
Cornelius  Stilphin,  captain  of  said  company,  was  the  same  identical 
person  who  signed  the  execution  by  the  name  Cornelius  Stilphin,  Jr., 
but  the  court  excluded  it  as  incompetent.3 

1  Holman  v.  Walden,  1  Salk.  6.  »  Brainard  v.  Stilphin,  6  Vt.  9. 

9  Headley  v.  Shaw,  89  111.  354. 


NAME — IDEM  SONANS.  51 

Misnomer  —  defective  orthography. 

§  84.  The  doctrine  of  idem  sonans  having  been  so  often  passed 
upon  and  illustrated  that  the  rule  seems  to  be  settled  that  when  it  occurs 
that  the  sound  of  a  name,  idem  sonans,  whether  of  a  party  to  an 
action  or  of  a  third  party,  is  not  in  any  way  affected  by  bad  or  de- 
fective orthography,  such  error  is  immaterial ;  and  two  names  being 
alike  in  the  original  derivation,  and  having  become  promiscuous  in 
their  use,  though  differing  in  their  sound,  will  not,  by  the  use  of 
either,  be  considered  a  fatal  variance.  But  it  has  been  held  that  the 
doctrine  is  not  to  be  rigidly  enforced  by  the  courts.  As  held  in 
Illinois,  the  courts  at  the  present  day  will  not  be  confined  to  the 
rigid  rules  of  idem  sonans,  but  will  inquire  whether  the  variance  is 
material.1  And  so  it  has  been  held  in  some  of  our  Western  States, 
in  the  use  of  the  names  of  foreigners  ;  the  courts  hesitate  to  decide 
there  is  a  material  variance  when  it  occurs  in  misspelling  the  name, 
or  an  incorrect  pronunciation  of  a  man's  proper  name,  where 
valuable  and  important  rights  are  involved  and  at  issue.  And  so, 
where,  in  a  deed  of  conveyance  of  real  estate  and  acknowledgment 
thereof,  the  party,  in  making  out  his  chain  of  title,  gave  in 
evidence  one  deed  to  Mitchell  Allen,  and  a  deed  thereof  from 
Michael  Allaine,  and  insisted  that  the  names  represented  the  same 
person.  This  was  held  to  be  no  variance.  They  were  French 
names,  and  the  difference  in  spelling  Mitchell  and  Michael  would 
result  from  giving  the  name  the  English  or  French  pronunciation  ; 
and  the  names  of  Allen  and  Allaine  were  idem  sonans.  And  what 
was  remarkable,  in  the  same  chain  of  title,  there  was  a  deed  to 
Otaine  Allaine  and  a  deed  from  Antoine  Allaine  claimed  to  be  to 
and  from  the  same  person ;  and  this  was  held  not  to  be  a  fatal 
variance.  These  names  were  also  French,  and  it  was  presumed  that 
there  was  proof  in  the  court  below  that  Antoine  took  by  a  misnomer 
and  conveyed  the  property  by  his  own  proper  name.2 

Bond  —  names  —  sureties  —  rule  in  Illinois. 

§  85.  In  Illinois,  in  a  chancery  suit,  the  plaintiff's  bill  was  dismissed 
and  he  prayed  an  appeal  from  the  order  dismissing  it,  and  obtained 
the  order  of  appeal,  provided  he  would  file  the  requisite  bond,  with 
one  Henry  Service  as  his  surety.  When  he  filed  his  appeal  bond  his 
surety  signed  his  proper  name,  J.  H.  Servoss,  as  the  surety.  The 
court  said :  "  The  appeal  bond  should  have  been  executed  by  the 

1  Belton  v.  Fisher,  44  111.  32.         8  Chiniquy  v.  Cath.  Bish.  Chicago,  41  HI.  148. 


52  THK  LAW  OF  IDENTIFICATION. 

person  named  as  security,  in  the  order  granting  the  appeal.  Here 
the  name  signed  as  security  is  altogether  different  from  that 
mentioned  in  the  order  granting  the  appeal."1  This  case  seems  to 
have  gone  to  the  very  verge  of  the  law,  if  not  beyond  it. 

Names  —  not  idem  sonans  —  "  Henry  "  and  "  Harry." 

§  86.  It  was  held  in  Illinois,  that  Henry  and  Harry  are  distinct 
names,  and  in  a  proceeding  by  scire  facias,  if  it  is  assumed  that  one  of 
these  names  is  a  corruption  of  the  other,  proper  averments  should  be 
used,  or  the  judgment,  if  by  default,  will  be  erroneous,  and  for  this 
reason  reversed.  The  court  laid  down  the  rule  thus  :  "  It  is  ob- 
jected that  Henry  Freelove,  and  not  Harry  Freelove,  was  called  and 
defaulted.  While  the  name  of  Henry  is  sometimes  corrupted  into 
Harry,  yet  they  are  separate  and  distinct  names.  We  cannot,  there- 
fore, hold  that  they  are  the  same,  unless  it  were  shown  by  averments 
and  proof.  Had  the  scire  facias  averred  that  Harry  Freelove  and 
Henry  Freelove  were  one  and  the  same  person,  and  the  averment 
had  been  sustained  by  proof,  or  its  truth  admitted  by  the  defendant, 
the  judgment  would  be  sustained.2  And  it  was  also  held  that  a 
recognizance  for  the  appearance  of  a  person  by  the  name  of  William 
H.  Graves  is  not  forfeited  by  an  indictment  against  Harrison  Graves, 
and  his  non-appearance.  If  the  facts  of  the  case  warranted,  there 
should  have  been  an  averment  in  the  scire  facias,  that  Harrison 
Graves  was  the  person  who  entered  into  the  recognizance  by  the 
name  of  William  H.  Graves.3 

Misspelled  name  —  firm  name  —  strictness. 

§  87.  One  Butler  was  duly  summoned  to  court  as  defendant  on 
the  docket,  to  answer  the  complaint.  He  searched  the  docket  in 
company  with  his  counsel,  and  found  no  case  on  the  docket  against 
him  as  Butler  /  but,  as  appeared  on  the  docket,  it  was  against  one 
Suiter,  and  he  failed  to  appear,  and  there  was  judgment  and  execu- 
tion. He  brought  it  up  on  certiorari,  but  could  find  no  relief  ;  but 
it  was  said  that,  if  there  was  a  misnomer,  he  should  have  pleaded  in 
abatement.4  In  the  case  of  abbreviations,  it  was  held  that  "  Com." 
and  "  Co."  were  well- understood  abbreviations  of  the  word  "  com- 
pany," when  used  as  a  part  of  the  name  of  a  commercial  firm.  An 
assignee  brought  an  action  on  a  promissory  note  made  payable  to 

1  Shinkell  v.  Letcher,  40  111.  48.  3  Graves  v.  People,  11  111.  542. 

*  Garrison  v.  People,  21  111.  535.    Cit-        4  Hermann  v.  Butler,  59  111.  225. 
ing  Graves  v.  People,  11  id.  542. 


NAME  —  IDEM  SONANS.  53 

"  Sturges  &  Com. ; "  the  allegation  in  the  declaration  set  out  that  it 
was  indorsed  by  "  Sturges  &  Com."  When  plaintiff  produced  the 
promissory  note  to  read  it  in  evidence  on  the  trial,  it  was  indorsed 
by  "  Sturges  &  Co."  This  was  held  to  be  no  material  variance.1 

Names  —  idem  sonans  —  larceny. 

§  88.  A  party  in  Massachusetts  was  indicted  for  larceny  from  one 
John  M.  Mealy,  and  he,  as  a  witness,  testified  that  his  name  was 
spelled  "Malay"  or  "Maley,"  but  never  called  "Mealy."  The 
court  left  it  to  the  jury  to  say  whether  the  name  proved  was  idem 
sonans  with  the  one  in  the  indictment,  and  he  was  convicted.  The 
Supreme  Court  held  that  the  question  of  misnomer  was  rightly  left 
to  the  jury.2  A  party  in  Texas  was  indicted  for  stealing  a  red  bull 
yearling,  which  was  neither  marked  nor  branded,  from  one  "  Hix 
Nowells ; "  the  witness,  Nowells,  testified  that  his  name,  properly 
spelled,  was  "  Hicks  Nowells,"  and  where  it  had  been  spelled  in  the 
indictment  "  Hix  Nowells,"  the  court  held  that  "  Hix  Nowells  "  and 
"  Hicks  Nowells  "  were  idem  sonans,  and  that  the  court  did  not  err 
in  its  charge  to  the  jury  in  disregarding  the  difference  in  the  orthog- 
raphy of  the  name,  and  in  omitting  to  submit  to  the  jury  for  their 
determination  whether  or  not  the  name  as  spelled  in  the  indictment 
was  the  same  as  that  proved  on  the  trial,  that  there  was  no  room  for 
doubt  upon  the  question,  and  the  court  might  well  assume  that  the 
names  were  identical.  If  there  had  been  any  doubt  as  to  whether 
the  names  were  idem  sonans,  it  would  have  been  proper,  and  per- 
haps essential,  to  have  submitted  the  question  to  the  jury.3 

Same  —  bigamy  —  name  of  wife. 

§  89.  Defendant  Jenning  was  indicted  in  Massachusetts  for 
bigamy,  charging  that  he  was  lawfully  married  to  one  Augusta 
Gigger,  and  that  afterward  he  did  unlawfully  marry  one  Hattie 
Johnson,  he  being  then  and  there  the  lawful  husband  of  the  said 
Augusta  Gigger,  who  was  still  living  at  the  time  of  said  second  mar- 
riage by  defendant.  He  was  convicted  and  the  conviction  affirmed. 
The  court  said  :  "  The  question  of  misnomer  was  rightly  submitted 
to  the  jury,  who  were  well  warranted  in  finding  that  the  name  of 
the  first  wife,  as  spelled  in  the  indictment  and  in  the  record  of  her 
marriage,  "  Gigger,"  the  initial  letter  had  the  soft  sound,  which  it 
conversely  (though  not  universally)  has  before  "  i,"  and  that  the 

1  Keith  v.  Sturges,  51  111.  143.  »  Spoonemore  v.  State,  25  Tex.  App. 

s  Coin.  v.  Donovan,  13  Allen,  571.  858.     Citing  Henry  v.  State,  7  id.  388. 


54  THE  LAW  OF  IDENTIFICATION. 

double  letter  had  the  usual  hard  sound,  and  that  the  name  which 
the  only  witness,  other  than  the  defendant,  pronounced  in  the  same 
way,  and  testified  was  spelled  either  "  Jigger  "  or  "  Jigr,"  was  usu- 
ally so  pronounced."1 

Names  —  spelling  —  sound  alike  —  idem  sonans. 

§  90.  In  a  very  late  case  in  the  Massachusetts  court,  the  defend- 
ant  was  indicted  for  adultery,  and  this  court  admitted  evidence  to 
show  that  a  woman  described  in  the  indictment  as  Albino  Jeffords,  the 
person  with  whom  the  offense  was  alleged  to  have  been  committed, 
had  pleaded  "  not  guilty  "  to  a  complaint  against  Albino  Jeffards. 
It  was  held  that  this  evidence  was  properly  admitted  on  the  question 
of  identity,  whether  or  not  she  was  correctly  described  in  the  indict- 
ment.2 In  another  recent  case  in  the  same  State,  on  the  trial  of  an 
indictment  for  polygamy,  it  appeared  that  the  name  of  the  defend- 
ant's first  wife  was  spelled  "Celeste"  in  the  indictment.  The  first 
wife  testified  that  her  first  name  was  "  Celestia."  She  pronounced 
it  "  Celeste  "  in  two  syllables,  with  the  accent  on  the  last.  There  was 
no  other  evidence  as  to  the  pronunciation  and  sound  of  "  Celeste." 
It  was  held  that  the  question  of  misnomer  was  properly  submitted 
by  the  court  to  the  jury,  for  their  determination.3  * 

Suit  on  checks  —  identity  of  bank. 

§  91.  There  were  three  checks  drawn  by  Culver  in  favor  of  Marks. 
The  first  in  the  following  form,  to- wit :  "  LAFAYETTE,  Ind.,  Nov.  1, 
1869.  The  First  National  Bank  pay  to  J.  F.  Marks  one  thousand 
dollars.  (Signed)  M.  C.  CTJLVEE."  The  other  two  in  same  form,  ex- 
cept they  were  payable  to  J.  F.  Marks  or  bearer.  These  checks 
were  each  dated  at  Lafayette,  Ind.,  and  drawn  on  the  "  First  National 
Bank,"  the  name  of  no  other  place  or  bank  appearing  on  the  checks, 
and  the  evidence  showed  that  there  was  a  National  bank  at  Lafayette- 
The  presumption  was  held  to  be  that  the  checks  were  drawn  upon 
the  First  National  Bank  of  Lafayette.  On  this  point  the  court  said  : 
"  A  question  is  made  as  to  the  checks.  "  It  is  contended  that,  as  tlie 

1  Com.  v.  Jennings,  121  Mass.  47.  '  Com.  v.  Warren,  143  Mass.  568. 

1  Com.  v.  Brigham,  147  Mass.  414. 

*  In  Com.  v.  Warren,  ntpra,  the  court  said  :  "The  province  of  the  court  and  jury  In  cases  like 
the  present  IH  governed  by  the  following  rule:  If  two  names,  spelt  differently,  necessarily  sound 
alike,  the  court  may,  as  matter  of  law,  pronounce  them  to  be  Mem  aonann;  but  if  they  do  not 
necessarily  sound  alike,  the  question  whether  they  are  idem  sonnnn  is  a  question  of  fact  for  the 
jury.  The  Queen  v.  Davis,  4  New  Ress.  Cas.  611;  5  Cox  C.  0.  237;  a  Den.  C.  C.  238.  In  that 
case  the  Judge  ruled  as  matter  of  law  that  "  Darin*"  and  "  Tryus  "  were  Idem  sonans.  The 
conviction  was  quashed.  COLERIDOE,  J.,  saving:  'If  the  question  had  been  left  to  the  jury,  there 
can  be  no  doubt  that  a  Dorsetshire  jury  would  have  found  that  Darius  and  Tryus  were  the  same 
name.1  "  And  see  the  case  of  Com.  v.  Jennings,  121  Mass.  47. 


NAME  —  IDEM  SONANS.  55 

complaint  alleges  that  the  checks  were  drawn  on  the  '  First  National 
Bank  of  Lafayette,  Indiana,'  and  there  was  no  proof  of  such  fact 
except  that  the  checks  were  drawn  on  the  'First  National  Bank,' 
that  the  proof  made  by  the  introduction  of  the  checks  does  not  cor- 
respond with  the  averments  of  the  complaint.  The  checks  were 
copied  and  made  part  of  the  respective  paragraphs  of  the  complaint 
which  declared  upon  them,  and  shows  affirmatively,  in  each  paragraph 
of  the  complaint,  the  name  of  the  bank  upon  which  they  were  drawn. 
They  were  each  dated  at  Lafayette,  Indiana,  and  the  name  of  no 
other  place  or  bank  appeared  upon  the  checks,  and  the  evidence 
showed  there  was  a  '  First  National  Bank  '  at  Lafayette,  and  the  fair 
presumption  is,  in  the  absence  of  any  thing  appearing  to  the  contrary, 
that  it  relates  to,  and  that  they  were  drawn  on  that  bank."1 

Promissory  note  —  to  cashier  of  bank  —  rule  in  Indiana. 

§  92.  A  promissory  note  payable  to  the  cashier  of  a  bank  is  in 
effect  payable  to  the  bank,  and  an  action  may  be  brought  on  it  in 
the  name  of  the  bank,  or  a  successor  to  the  cashier  named,  without 
an  assignment  by  the  latter,  who  need  not  be  a  party.  The  court 
said  :  "It  was  shown  that  Boyd,  to  whom,  as  cashier,  the  mortgage 
was  made,  had  succeeded  Patton  in  the  office.  It  is  the  case  of  a 
trustee  of  an  express  trust,  who  may  sue  in  his  own  name,  without 
joining  the  cestui  que  trust.  Patton,  having  ceased  to  be  the  trustee, 
had  no  interest  in,  or  relation  to,  the  paper,  which  made  him  a  nec- 
essary party.  Paper  made  payable,  or  indorsed,  to  the  cashier  of  a 
bank  is,  in  effect,  payable  to  the  bank  itself,  and  in  this  case  the  suit 
might  appropriately  have  been  brought  in  the  name  of  the  bank, 
though  not  improperly  brought  in  the  name  of  the  cashier.2  And 
so  the  action  by  the  cashier  was  sustained. 

Note  in  bank  —  indorsement  —  identity  of  bank  and  cashier. 

§  93.  In  a  very  recent  case  in  Michigan,  plaintiff  recovered  a  judg- 
ment on  the  following  instrument,  to-wit.,  $1,235.00.  Six  months 
after  date,  for  value  received,  I  promise  to  pay  to  the  First  National 
Bank  of  Boise  City,  Idaho,  in  favor  of  E.  Pinkham  or  order  the 
sum  of  twelve  hundred  and  thirty-five  dollars,  with  interest  at  eight 
per  cent  per  annum.  Chicago,  Dec.  11,  1885.  HARVY  COCKELL." 

On  the  back  of  this,  was  indorsed:  —  "  E.  Pinkham."      "  Pay  to  the 

Culver  v.  Marks,  122  Ind.  555.     Cit-        3  Dutch  v.  Boyd,  81  Ind.  147.    And  see 
Walker  v.  Woollen,  54id.l64;  Roach    Nave  v.  Hadley,  74  id.  155. 
245;  Dutch  v.  Boyd,  81  id.  146. 


ing  Walk 
v.  Hill,  id. 


56  THE  LAW  OF  IDENTIFICATION. 

order  of  Citizens'  Exchange  Bank  (Hart,  Mich.),  for  collection  for 
account  of  First  National  Bank  of  Idaho.  JOHN  HUNTOON,  Cashier." 
A  line  had  been  drawn  through  all  the  words  between  "Pink- 
ham  "  and  "  First  National  Bank,"  etc.  This  was  introduced  in 
evidence  on  the  trial.  The  judgment  was  reversed,  because  the 
court  was  of  opinion  that,  "  If,  as  seems  to  be  suggested,  plaintiff's 
title  must  be  traced  through  this  indorsement  from  the  bank  which 
owned  it,  there  is  a  double  difficulty  in  the  case  :  That  there  was  no 
evidence  that  the  First  National  Bank  of  Boise  City,  Idaho,  is 
identical  with  the  First  National  Bank  of  Idaho.  Neither  is  there 
any  proof  that  Huntoon  was  the  cashier  of  either  of  them.1 

Note  —  where  payable  —  silent  —  presumption. 

§  94.  Where,  in  Indiana,  in  a  recent  case,  a  suit  was  brought  to 
recover  a  debt,  upon  a  promissory  note,  executed  by  the  defendant, 
it  was  held  that  it  would  be  presumed,  until  the  contrary  was  made 
to  appear  by  evidence  given  in  the  case,  that  such  promissory  note 
was  made  and  executed  in  the  State  of  Indiana  ;  and  that  where,  in 
a  suit  brought  upon  such  promissory  note,  it  specifies  some  particular 
bank  at  which  it  is  made  payable,  but  does  not  specify  the  State  in 
which  such  bank  is  located,  it  will  be  presumed,  until  the  contrary  is 
made  to  appear,  that  such  bank  is  located  in  that  State.2  But  these 
presumptions  like  other  presumptions  may  be  rebutted  or  overcome 
by  other  and  countervailing  evidence.  The  same  rule  was  held  in 
another  case  by  the  same  court,  and  about  the  same  time,  under  cir- 
cumstances very  similar  to  those  given  above.3 

Idem  sonans  —  verdict  —  indictment. 

§  95.  The  rule  of  idem  sonans  applies  as  well  to  ordinary  words 
as  to  proper  names  ;  and  so,  on  the  trial  of  a  recent  case  in  Louisiana, 
for  assault  and  battery  with  intent  to  murder,  the  jury  returned  a 
verdict,  finding  "  the  accused  guilty  with  assault  by  sutinge  with  in- 
tent to  murder."  It  was  held  that  the  verdict  was  sufficient  to  rea- 
sonably convey  the  idea  intended,  the  word  "sutinge"  being  in- 
tended for  " shooting"  under  the  rule  of  idem  sonans*  A  party  in 
Texas  was  indicted  for  the  murder  of  one  "  Whitman  "  or  "  White- 
man."  The  indictment  in  one  part  spelled  the  name  of  the  deceased 
"  Whitman"  and  in  other  parts  "  Whiteman."  The  defense  moved 

1  Pinkham  v.  Cockell,  77  Mich.   265        3  Roach  v.  Hill,  54  Ind.  245. 
(1889)  *  ytuto  v.  Wilson,  40  La.  Ann.  751 . 

*  Walker  v.  Woollen,  54  Ind.  164. 


NAME  —  IDEM  SONANS.  57 

to  quash  and  in  arrest  of  judgment,  because  of  uncertainty  resulting 
from  the  discrepancy  between  the  names  "  Whitman  "  and  "  White- 
man."  But  it  was  held  that  the  allegations  of  the  indictment  pre- 
cluded any  uncertainty,  and  that  the  names  were  idem  sonans,  and 
the  same.  The  court  said :  "  The  following  among  many  others 
found  in  the  books  are  held  to  be  idem  sonans:  Blankenship  and 
Blackinship,  Mclnnis  and  McGinnis,  Edminson  and  Edmundson, 
Deadema  and  Diadema,  and  Couley  and  Connolly.  In  Gresham  v. 
Walker,  10  Ala.  370,  it  was  said :  The  law  does  not  take  notice  of 
orthography ;  therefore,  if  the  name  is  misspelled,  no  harm  to  the 
prosecution  can  come  from  this,  provided  the  name  as  written  in  the 
indictment  is  idem  sonans,  as  the  books  express  it,  with  the  true 
name.  It  is  sometimes  a  nice  matter  to  determine  when  the  names 
are  of  the  same  sound ;  and  the  courts  do  not  in  this  matter  hold  the 
rule  of  identity  with  a  strict  hand.1 

Same  —  indictment  —  assault  and  battery. 

§  96.  One  Ward  was  indicted  for  an  assault  and  battery  on  Henry 
Chambles;  the  assaulted  party  testified  that  his  name  was  Henry 
Chambless,  and  that  in  spelling  it  he  doubled  the  letter  "  s  "  at  the 
end,  and  witness  pronounced  his  name  as  it  was  usually  called,  show- 
ing that  both  syllables  were  emphasized  about  equally.  It  was  held 
that  the  variance  between  the  averment  of  the  indictment  and  the 
proof  as  to  the  name  of  the  person  assaulted  was  immaterial  where  the 
names  may  be  sounded  alike  without  doing  any  violence  to  the 
power  of  letters  found  in  the  variant  orthography,  as  in  the  name 
of  Chambless  and  Chambles.2 

Corporation  —  name  of  railroad  —  rule  as  to. 

§  97.  In  actions  by  or  against  corporations,  upon  the  question  of 
identity  by  name,  like  those  by  or  against  individuals,  the  defendant 
or  plaintiff  should  be  described  by  the  correct  name;  and  where  the 
name  of  the  corporation  consists  of  several  words,  the  transposition 
or  alteration,  or  even  the  omission  of  some  of  them,  may  perhaps  not 
be  sufficiently  important  or  material  to  make  a  fatal  variance  if  it  be 
still  left  clear  what  particular  corporation  is  intended  by  the  state- 
ment made  in  the  declaration,  in  the  attempt  to  describe  it.  So, 
where  Chadsey  brought  siiit  on  a  promissory  note,  payable  to  James 

1  Henry  v.  State,  7  Tex.  App.  388.  2  Russell  Crimes,  715;  Ahitbol  v.  Beni- 

Citing  Arclib.  Cr.  Pr.  &  PI.  80  ;  Ward  v.  ditto,  2  Taunt.  401;  Greshain  v  Walker, 

State,  28  Ala.  53.  10  Ala.  370. 

8  Ward  v.  State,  28  Ala.  53.     Citing 

8 


58  THE  LAW  OF  IDENTIFICATION. 

G.  McCreary,  treasurer  of  the  Rock  Island  and  Alton  Railroad  Com- 
pany, it  was  a  mere  description  of  the  person.1  * 

Name  of  indorser  —  witness  —  defendant. 

§  98.  A  defendant,  being  an  indorser  on  a  bill  of  exchange,  sent 
a  person  to  the  plaintiff  and  indorsee,  to  inquire  of  him  as  to  the  sol- 
vency of  B.,  a  prior  indorser  ;  the  person  who  was  sent  to  the  house 
to  inquire,  went  to  the  plaintiff's  residence,  and  on  the  street  door 
being  opened,  a  person  in  a  dressing  gown,  whom  he  had  never  seen 
before  or  afterward,  asked  him  what  his  business  was.  It  was  held 
that  this  was  not  evidence  of  the  identity  of  the  plaintiff,  to  let  in 
the  evidence  of  the  conversation  had  with  the  man  in  the  dressing 
gown.2 

Suit  was  brought  against  one  "  S."  It  was  shown  in  evidence 
that  a  witness  went  to  the  tavern  and  asked  a  waiter  if  S.  was  there, 
and  a  person  came  out,  and  he  inquired  of  him  who  he  was,  when  he 
answered  that  his  name  was  S.  This  witness  had  never  seen  him 
before  and  never  saw  him  at  any  time  thereafter.  On  this  statement 
it  was  held  that  it  was  some  proof  that  this  person  was  S.,  and  that 
the  conversation  between  the  witness  and  such  person  was  then 
admissible  in  evidence  to  go  to  the  jury.3 

Same  —  identity  of  name  —  person. 

§  99.  It  is  held  in  England  that  it  is  not  necessary  to  make  strict 
proof  of  the  identity  of  the  defendant  in  an  action  with  the  person  of 
the  same  name,  concerning  whom  a  witness  gave  evidence.  The  simi- 
larity of  the  name  will  be  sufficient  to  throw  the  burden  of  proof  on 
the  defendant  to  show  that  he  is  not  the  person  spoken  of.4  The 
identity  of  the  name,  as  we  have  seen,  is  to  be  taken  as prima  facie 
evidence  of  the  identity  of  the  person.  It  raises  a  presumption, 

1  Chadsey  v.  McCreery,  27  111.  253.  *  Hamber  v.  Roberts,  7  C.  B.  861;   18 

2  Corfield  v.  Parsons,  1  C.  &  M.  730.       L.  J.  C.  P.  250. 
8  Reynolds  v.  Staines,  2  C.  &  K.  745. 

*In  Chadsey  v.  McCreary,  supra,  BREESE,  J.,  said:  "  This  suit  was  brought  by  a  corporation, 
and,  consequently,  no  question  of  a  misnomer  of  a  corporation  can  arise.  The  note  is  made  pay- 
able to  the  appeuee,  who  is  described  to  be  the  treasurer  of  the  Rock  Island  and  Alton  Rail- 
road Company.  It  is  mere  description  of  the  person,  and,  if  erroneous,  cannot  vitiate.  The 
fact  appears  to  be,  that  the  true  name  of  the  railroad  company  is  Alton  and  Rock  Island.  The 
transiKwitirm  can  be  of  no  manner  of  consequence  in  this  suit.  There  can  be  no  doubt  what 
road  was  meant,  of  which  the  appellee  was  the  treasurer.  In  1  Kyd,  287,  it  is  said,  as  the  name  of 
a  corporation  frequently  consists  of  several  words,  the  transposition,  interpolation,  omission  or 
alt. -r;it  ion  of  some  of  them  may  make  no  essential  difference  of  their  sense.  It  is  held  in  a  devise 
to  a  corporation,  if  the  words,  though  the  name  be  entirely  mistaken,  show  that  the  testator 
could  only  mean  a  particular  corporation.  It  is  sufficient;  as  for  instance,  a  devise  to  the  inhabit- 
ants of  the  South  Parish  may  be  enjoyed  by  the  inhabitants  of  the  First  Parish,  the  "  First  Parish  " 
being  the  legal  name.  3  Pick.  237.  There  is  no  evidence  preserved  in  the  record  except  the  note; 
BO  we  cannot  know  but  that  it  was  abundantly  proved  what  corporation  was  understood  and  meant 
by  the  description  In  the  note.  That  the  Alton  and  Rock  Island  Railroad  Company  are  liable  to 
Issue  stock  on  the  payment  of  this  note  there  can  be  no  doubt."  And  see  Peake  v.  Wabash  R.  R. 
Co.,  18  III.  K.S;  Jowett  y.  Charnock,  6  M.  &  8.  45. 


NAME  —  IDEM  SONANS.  59 

which  will  stand  until  it  is  rebutted  or  overthrown  by  countervail- 
ing evidence.  And  where  a  carman  carried  goods  to  the  house  of 
L.  but  did  not  know  him  —  he  inquired  for  Mr.  L.  of  a  person  in 
the  house,  and  that  person  said  "  I  am  Mr.  L."  —  this  was  held  to  be 
prima  fade  evidence  that  the  person  to  whom  the  carman  spoke 
was  Mr.  L.1 

Identity  —  plaintiff's  name  —  "  Lubuke  "  and  "  Lubukee." 

§  100.  In  an  action  of  ejectment  in  Illinois,  the  plaintiff  sought  to 
support  his  claim  of  title  by  a  decree  rendered  on  a  proceeding  un- 
der the  ' '  Burnt  Record  Act "  against  the  same  defendants.  A 
question  arose  as  to  the  identity  of  plaintiff  in  the  two  suits,  there 
being  a  difference  in  the  spelling  of  the  surnames.  In  the  ejectment 
suit,  throughout  the  whole  proceedings  the  plaintiff's  name  was 
spelled  "  Lubukee] '  while  in  the  proceedings  in  the  other  case,  with 
one  exception,  it  was  written  "  Z,ubuke."  In  entitling  the  copy  of 
the  decree  in  that  case,  as  the  same  was  set  out  in  the  record  in  the 
ejectment  suit,  the  name  was  spelled  "  Lubuke."  In  the  two  suits, 
the  names  of  the  defendants,  the  Christian  name  of  plaintiff,  the 
court  in  which  the  suits  were  brought,  the  appeal  in  both  cases 
in  the  Supreme  Court,  and  the  appeals  therein,  all  corresponded 
with  literal  accuracy.  There  was  no  evidence,  aside  from  the  diver- 
sity in  spelling  the  names,  that  Lubuke  and  Lubukee  were  different 
persons,  or  that  there  was  ever  but  one  proceeding  brought  against 
the  same  defendants  under  the  "  Burnt  Record  Act,"  involving  the 
title  to  the  land  in  controversy  ;  and  in  an  application  for  a  continuance 
in  the  ejectment  suit,  in  the  trial  court,  the  defendants  expressly 
stated  that  the  plaintiff  in  that  suit  was  the  plaintiff  in  the  former 
suit.  It  was  held  that,  in  the  absence  of  countervailing  evidence, 
the  facts  sufficiently  established  the  identity  of  the  plaintiff  in  the 
two  suits.2 

Introduction  by  name  —  fraud. 

§  101.  On  the  trial  of  the  right  of  property  in  a  stock  of  goods, 
between  a  judgment  creditor  and  a  claimant  by  purchase  from  the 
judgment  debtor,  under  a  bill  of  sale  dated  prior  to  the  rendition  of 
the  judgment,  it  was  held  competent  for  plaintiff  to  prove  that,  after 
the  rendition  of  the  judgment,  the  defendant  in  execution  went  into 
the  office  of  an  attorney,  accompanied  by  a  person  who  was  unknown 
to  the  attorney,  but  who  was  introduced  to  him  as  bearing  the  name 

1  Wilton  v.  Edwards,  6  C.  &  P.  677.      2  Heacock  v.  Lubukee,  108  111.  641  (1884). 


60  THE  LAW  OF  IDENTIFICATION. 

of  the  claimant,  and  who  requested  him  to  write  a  transfer  of  the 
stock  of  goods  from  the  defendant  to  the  said  unknown  person.  The 
facts  tended  to  show  that  the  bill  of  sale  was  fraudulently  antedated, 
and  the  jury  might  infer  the  identity  of  the  person  from  the  iden- 
tity of  the  name.1  This  seems  to  carry  the  rule  about  as  far  as  it 
can  go  with  safety. 

Land  certificates  —  deeds  —  names. 

§  102.  In  a  Kentucky  case  decided  in  1820,  it  appeared  that  two 
certificates  for  lands,  under  the  act  disposing  of  the  vacant  lands  of 
the  Commonwealth,  granted  in  the  same  name,  it  was  held,  would  be 
taken  as  having  been  granted  to  the  same  person,  unless  the  contrary 
is  shown.  That  the  adjudications  of  the  County  Court,  granting 
certificates  to  settlers,  were  conclusive  only  for  certain  purposes,  for 
if  two  certificates  be  granted  to  the  same  person,  an  adversary  may 
show  it,  and  the  last  certificate  will  be  void.2  And  a  rule  similar  to 
the  above  was  held  in  Illinois  in  1864.  "  Covenants  of  warranty,"  said 
the  court,  "  passed  with  the  seizin  of  the  land  from  Lubbe  to  Flagg, 
and  from  him  to  James  Brown.  The  James  Brown  to  whom  Flagg 
conveyed  will  be  presumed  to  be  the  person  who,  by  that  name,  exe- 
cuted the  conveyance  to  Lubbe." 3  This  was  the  early  rule,  and  has 
been  followed  in  later  cases  where  the  facts  and  circumstances  were 
similar. 

Deed  to  land  —  married  woman. 

§  103.  It  is  held  that  ordinarily,  in  a  chain  of  conveyance,  simi- 
larity of  name  is  sufficient  evidence  for  the  identification  of  a  ven- 
dor with  the  purchaser  in  a  preceding  deed,  and  in  that  case  the 
coincidence  of  the  given  name  of  a  married  woman  with  that  of  a 
single  woman,  to  whom,  in  consideration  of  marriage,  land  had  been 
conveyed,  was  held  sufficient,  in  connection  with  possession  of  the 
original  title  papers,  and  with  recitals  in  the  deeds,  to  establish  a 
claim  of  title  dependent  for  its  continuity  upon  the  question  whether 
the  married  woman  and  the  single  woman  are  one  and  the  same  per- 
son, there  being  no  evidence  to  the  contrary.  And  though  recitals 
in  deeds  are  ordinarily  admissible  in  evidence  only  against  parties 
and  privies,  yet,  when  the  recital  is  of  a  matter  of  pedigree,  which 

'Moog  v.  Benedicks  &  Co.,  49  Ala.  3  Brown  v.  Metz,  33  111.  339.  Citing 

512.  2  Phil.  Ev.  508;  Sewell  v.  Evans,  4  Adol. 

*  Gates  v.  Loftus.  8  A.  K.  Marsh.  &  Ell.  (N.  S.)  636;  Simpson  v.  Dismore, 

(Ky.)  203.  9  M.  &  \V.  47. 


1  NAME  —  IDEM  SONANS.  61 

includes  the  facts  of  births,  marriages  and  deaths,  it  is  evidence  even 
against  a  stranger  to  the  deed.1 

Verdict  —  incorrect  orthography — effect. 

§  104.  It  has  been  correctly  stated  that,  as  a  rule,  bad  spelling 
will  not  vitiate  a  verdict  where  it  has  the  requisites  of  being  certain 
and  intelligible.  In  that  case  the  verdict  was  :  "  We  the  jury  find 
the  defendant  gilty  as  charged  in  the  indictment  and  assess  his 
punishment  at  confinement  in  the  penitentiary  for  a  turm  of  too 
years."  This  verdict,  though  not  a  good  specimen  on  the  question 
of  orthography,  was  held  to  have  the  two  essentials  of  certainty  and 
intelligibility,  and  to  be  one  which  could  not  be  misunderstood. 
And  so  in  Krebb's  case  this  court  held  that  the  verdict,  "  We  the 
jury  find  the  defendant  guilty  and  sets  his  punishment  deth"  how- 
ever obnoxious  in  spelling  and  style,  was,  notwithstanding,  an  intelli- 
gible verdict  in  a  murder  case.  Indeed,  it  may  now  be  stated  as  a 
general  rule,  that  neither  bad  spelling  nor  ungrammatical  expressions 
by  the  jury  will  vitiate  the  verdict  when  the  sense  is  clear.2  Another 
rule  is  that  verdicts  are  to  have  a  reasonable  intendment  and  to  re- 
ceive a  reasonable  construction,  and  are  not  to  be  avoided,  unless 
from  necessity  originating  in  doubt  of  their  import  or  immateriality 
of  the  issue  found,  or  their  manifest  tendency  to  work  injustice. 

Same  —  defective  orthography  —  when  not  fatal. 

§  105.  An  action  of  trespass  was  brought  in  Texas,  and  the  jury 
returned  a  verdict  for  the  plaintiff  for  the  sum  of  $50  against  the 
defendant  for  actual  damages,  and  $100  as  impunitive  damages. 
This  was  reversed,  the  court  saying :  "  The  verdict  was  unintelli- 
gible. Our  English  word  '  impunity,'  which  applies  to  something 
which  may  be  done  without  penalty  or  punishment,  comes  from  the 
Latin  word  impunis,  which  is  a  derivation  from  the  word  poena, 
with  the  prefix  in,  and  means  without  punishment  or  penalty.  We 
have  no  such  word  in  our  language  as  'impunitive.'  It  cannot 
then  be  a  proper  finding,  for  the  jury  to  say  :  We  the  jury  find  for 
the  plaintiff  $100  as  '  impunitive  damages."3  A  bad  specimen  of 
orthography,  however,  will  not  vitiate  the  verdict  of  the  jury,  when 
no  doubt  can  be  entertained  as  to  the  words  intended,  or  as  to  their 
meaning ;  but  it  is  not  the  province  of  the  jury  to  coin  words.4  In 
the  same  State,  the  jury  who  tried  and  convicted  a  prisoner  returned 

1  Chamblee  v.  Tarbox,  27  Tex.  139.  3  Dillon  v.  Rogers,  36  Tex.  152. 

2  Koontz  v.  State,  41  Tex.  570.  4  McMillan  v.  State,  7  Tex.  App.  100. 


62  THE  LAW  OF  IDENTIFICATION. 

a  verdict  finding  the  accused  guity  as  charged  in  the  indictment,  to 
which  no  objection  was  taken  until  assigned  for  error  in  the  motion 
for  a  new  trial.  It  was  held  that  the  verdict  was  sufficiently  intelli- 
gible not  to  be  misunderstood.1 

Name  in  actions  —  rule  in  England  —  identity. 

§  106.  It  was  held  in  England,  in  1849,  that  parties  were  not  en- 
titled to  put  in  evidence,  as  part  of  their  case,  documents  handed  to 
a  witness,  on  cross-examination  by  the  opposite  party,  to  depose  to 
their  nature,  and  that,  under  like  circumstances,  counsel  was  not  en- 
titled to  see  letters  which  were  handed  to  a  witness  to  depose  to 
handwriting.  It  was  held  to  be  prima  facie  proof  of  identity,  if  a 
name  were  written  up  in  an  auction-room,  and  the  auctioneer  is  ad- 
dressed by  the  bystanders  by  that  name.  WILDE,  C.  J.,  said  :  "  As 
to  the  inventory  and  the  lease,  I  think  those  documents  are  in 
the  defendants'  possession,  and  that  the  opposite  party  has  no  right 
to  them.  As  to  the  letters,  my  own  opinion  is,  that,  if  the  hand- 
writing, or  any  of  the  contents  of  any  paper  shown  to  a  witness,  be 
deposed  to,  the  opposite  counsel  is  entitled  to  see  it,  otherwise  he, 
perhaps,  would  not  be  able  to  shape  his  line  of  conduct.  He  would 
not  be  so  entitled  if  the  witness  merely  deposed  to  the  nature  of  the 
paper,  or  to  its  having  been  produced  on  a  given  occasion,  or  any 
similar  thing.  As  the  contrary,  however,  has  been  ruled,  I  will  abide 
by  that  ruling.  To  fix  one  of  the  defendants  —  Robinson,  the  auc- 
tioneer —  the  fact  is  put  in  evidence,  that  in  the  room  in  which  the 
plaintiffs  goods  were  sold,  the  name  of  Kobinson  was  written  up,  and 
that  the  by-standers  addressed  the  person  who  was  selling  as  Robinson. 
BOVILL  objected,  that  the  evidence  was  insufficient  to  establish 
identity.  WILDE,  C.  J.,  overruled  the  objection.  It  had  been  held 
that,  if  a  man's  name  appear  over  a  door,  and  a  person  within 
answers  to  the  name,  it  is  prima  faoie  evidence  that  he  is  the  man 
so  named."2 

An  action  in  England,  in  1842,  was  upon  a  judgment  for  costs  in 
a  divorce  suit  in  Scotland,  amounting  to  £93  5s.  8d,  claimed  to  be 
due  to  plaintiffs  under  a  decretal  order  of  the  Scotch  Sessions,  against 
William  Gray  Smith  or  Smyth.  The  copy  of  the  record  was  filed,  but 
the  question  of  defendant's  identity  arose.  PARKE,  B.,  following  Lord 
ABINGER,  0.  B.,  said  :  "  I  am  of  the  same  opinion.  There  appears  to 
me  to  be  ample  evidence  of  identity.  The  defendant  in  the  present 

1  Curry  v.  State,  7  Tex.  App.  91.  "  Collier  v.  Nokes,  2  Carr.  &  Kir.  1012. 


NAME — IDEM  SONANS.  63 

action  bore  the  same  Christian  and  surname  with  the  defendant  in 
the  Scotch  suit ;  both  had  resided  in  Dumphries ;  and  there  was  a 
correspondence  in  their  ages  and  professions."1 

Report  of  death  —  identity  of  plaintiff — rule  in  Kentucky. 

§  107.  In  a  Kentucky  case,  in  1805,  an  execution  was  quashed  be- 
cause the  plaintiff  was  supposed  to  be  dead.  The  question  was, 
what  proof  was  required  of  the  death  of  a  party  to  a  suit  who  is  al- 
leged to  have  died  in  a  remote  part  of  the  world.  The  proof  made 
before  the  general  court  as  to  the  death  of  the  plaintiff  was  a  report 
that  a  certain  Smith  Nicholas,  of  the  family  of  the  late  George 
Nicholas,  deceased,  had  died  at  the  Island  of  Madagascar,  and  the 
court  say  it  strongly  appeared,  and  was  not  absolutely  denied,  that 
the  Smith  Nicholas  of  the  State  of  Tennessee  is  the  same  Smith 
Nicholas  who  some  time  since  sailed  from  the  port  of  Baltimore  to 
some  part  of  the  East  Indies,  and,  by  common  report,  died  on  his  re- 
turn, at  the  Island  of  Madagascar,  previous  to  issuing  the  execution 
which  was  quashed.  "  The  first  question,"  said  the  court,  "  which 
presents  itself  is,  was  this  proof  sufficient  to  quash  the  execution  ? 
If  the  plaintiff  were  of  the  family  of  the  late  George  Nicholas,  proof 
of  a  mere  report,  or  a  common  report,  was  not  the  best  evidence 
which  the  nature  of  the  case  admitted  of,  and  which  was  in  the 
party's  power  to  have  procured ;  because,  by  procuring  the  testimony 
of  his  relations  in  Baltimore,  nay,  even  in  this  country,  the  fact 
might  have  been  rendered  more  certain  than  it  was  by  mere  report, 
and  upon  this  ground  the  court  erred  in  quashing  the  execution. 
But  it  is  not  shown  that  the  plaintiff  is  of  that  family  ;  and  the  re- 
port, even  if  that  were  more  certain,  of  the  death  of  that  Smith 
Nicholas,  unless  it  were  also  made  to  appear  that  he  was  plaintiff  in 
this  suit,  ought  not  to  have  produced  the  quashal  of  the  execution. 
This  proceeding  not  affecting  the  merits,  and  calculated  only  to 
produce  delay,  presumptions  ought  not  to  be  made  to  support  it." 
The  judgment  of  the  court  below  was  reversed  with  costs,  and  order 
to  proceed  with  the  execution.2 

Identity  of  plaintiff  by  name. 

§  108.  Where  the  records  of  an  inferior  court  of  a  certain  county 
when  sitting  for  ordinary  purposes,  shows  that  administration  was 
granted  on  the  estate  of  "  Jonathan  Pearson,  late  of  said  county,  de- 

1  Russell  v.  Smyth,  9  M.  &  W.  810,  s  Nicholas  v.  Lansdale,  Litt.  Sel.  Cas. 
818.  (Ky.)  21. 


64  THE  LAW  OF  IDENTIFICATION. 

ceased,"  and  it  appears  in  proof  that  Jonathan  Pearson,  who  is  the 
party  plaintiff  in  the  action  on  trial,  was  a  resident  of  such  county  a 
few  years  prior  to  the  grant  of  administration,  it  was  held  that 
there  was prima facie  evidence  of  the  identity  of  the  deceased  per- 
son with  the  plaintiff ;  and  the  force  of  such  evidence  is  strengthened 
when  it  is  not  answered  by  the  plaintiff  or  by  those  who  use  his 
name  for  the  assertion  of  their  claim.1 

Parties  to  actions — identity  of —  general  rule. 

§  109.  The  general  rule  on  the  subject  of  the  identity  of  parties 
to  actions  seems  now  to  be  that,  if  there  be  several  persons  in  the 
same  locality,  at  the  same  time,  of  the  same  name,  in  the  same  busi- 
ness or  profession,  and  any  fact  appears  which  raises  a  doubt  as  to 
the  identity  of  the  person,  the  mere  identity  of  name  is  insufficient 
to  establish  the  identity  of  person.2  But  it  has  been  held  to  be  suffi- 
cient presumptive  evidence  of  identity,  and  the  name  being  shown, 
it  then  devolves  upon  him  who  denies  the  identity  to  rebut  or  over- 
come the  presumption  by  proof  to  the  contrary,  unless,  however, 
such  proof  grows  out  of  the  facts  in  the  case.3  But,  where  the  tran- 
sactions are  remote,  it  has  been  held  that  mere  identity  of  name  is 
not  sufficient  as  presumptive  evidence  of  identity.4  In  England 
where  the  name  was  written  up  in  an  auction-room  at  the  time  of 
the  sale,  and  the  party  was  addressed  by  that  name,  it  was  held  to  be 
sufficient  proof  of  his  identity.5  But  it  was  held  in  England,  and 
also  in  Massachusetts,  that  where  the  name,  the  residence  and  the  oc- 
cupation, trade  or  profession  of  a  party  defendant  to  an  action  were 
the  same,  the  onus  was  on  him  to  disprove  identity.6  And  this 
seems  now  to  be  the  general  rule  in  England  on  this  subject,7  and 
has  been  followed  by  our  courts.8 

Same  —  grantor  —  initials  —  deceased  plaintiff. 

§  110.  If  the  subsequent  grantor  of  lands  be  of  the  same  name  as 
the  prior  holder  and  grantor,  he  will  be  presumed  to  be  the 

1  Clark  v.  Pearson,  53  Ga.  496.  Ryde,  3  G.  &  D.   604;  Greenshields  v. 

8  Gitt  v.  Watson,  18  Mo.  274;  Hamber  Crawford,  9  M.  &  W.  314;  Page  v.  Mann, 

v.  Roberts,  7  M.,  G.  &  8.  860;  Goodell  v.  1  Mood.  &  Malk.  79;  Sewell  v.  Evans,  4 

Hibbard,  82  Mich.  48;  People  v.  Rolfe,  Adol.  &  Ellis  (N.  S.),  626;    Murieta  v. 

61  Cal.  541;  State  v.  Moore,  61  Mo.  276;  Wolfhagen,  2  C.  &  K.  744. 

Hamsher  v.  Kline,  57  Pa.  St.  403.  1  Russell  v.  Tunno,  Pinckney  &  Co., 

3  Simpson  v.  Diamore,  9  M.  &  W.  47;  11  Rich.  (8.  C.)  303;  Atchison  v.  M'Cul- 
Hoyt  v.  Davis,  80  Mo.  App.  809.  loch.  5  Watts  (Pa.),  18;  Grindle  v.  Stone, 

4  Sitler  v.  Gehr,  105  Pa.  St.  577.  78  Me.  176;  Douglas  v.  Dakin,  46  Cal.  49. 
6  Collier  v.  Nokes,  2  C.  &  K.  1012.  8  Bell  v.   Brewster,  44  Ohio  St.   690; 
•  Com.  v.  CoBtello,  120 Mass.  369;  Rus-     Wilbur  v.  Clark,  22  Mo.  503. 

sell  v.  Smyth,  9  M.  &  W.  818;  Roden  v. 


NAME  —  IDEM  SONANS.  65 

same  person,  in  the  absence  of  any  proof  to  the  contrary.1  And 
parties  to  a  succession  of  deeds  which  make  up  a  chain  of  title  are 
held  presumptively  to  be  the  same  persons.2  But  when  the  family 
name  and  initials  are  the  same,  as  a  legal  proposition  it  should  not 
be  assumed  that  there  is  identity  of  person.3  The  objection  to  the 
identity  of  a  person  cannot  be  raised  for  the  first  time  in  the  supreme 
or  appellate  court  —  the  objection  must  be  raised  in  the  trial  court 
and  let  that  court  have  the  opportunity  of  passing  upon  the  question, 
because  that  court  may  sustain  the  objection  and  obviate  the  appeal, 
so  far  as  that  point  is  concerned.4  It  was  held  in  Michigan,  in 
an  action  by  Isaac  N.  Gage,  upon  a  guaranty  of  collection,  by  one 
Reed,  of  several  promissory  notes  executed  by  one  Cole,  to  be  com- 
petent to  admit  in  evidence  the  proceedings  and  judgment  against 
Cole,  to  enforce  the  collection  of  the  promissory  notes  ;  although  the 
name  of  the  plaintiff  in  those  proceedings  was  Newton  Gage,  where 
it  is  shown  that  the  plaintiff's  name  was  Isaac  Newton  Gage,  and 
that  he  is  the  same  person  named  as  Newton  Gage  in  the  judgment 
against  Cole.5  The  court  will  not  generally  presume  the  identity 
of  person,  as  it  is  a  fact  for  the  jury.  In  Georgia,  where  the  records 
of  a  court  showed  that  letters  of  administration  had  been  granted  on 
the  estate  of  an  intestate,  and  it  appeared  from  the  evidence  that 
such  person,  who  was  plaintiff  in  an  action  on  trial,  was  a  resident  of 
the  county  a  few  years  prior  to  the  grant  of  such  letters  of  admin- 
istration, it  was  held  to  be  prima  facie  evidence  of  identity  of  the 
deceased  person  with  the  plaintiff  in  the  action  on  trial.6  * 

1  Jackson  v.  King,  5  Cow.  237;  Brown     Houk  v.  Barthold,   73  Ind.   22;  Reed  v. 
v.  Metz,  33  111.  339.  Gage,  3d  Mich.  179;  Bennett  v.  Libhart, 

2  Chamblee  v.  Tarbox,   27  Tex.   139;     27  Mich.  489. 

Cross  v.  Martin,   46  Vt.  14;  Heacock  v.  4  Houk  v.  Barthold,  73  Ind.  22. 

Lubukee,  108  111.  641;  Gates  v.  Loftus,  5  Reed  v.  Gage,  83  Mich.  179. 

3  A.  K.  Marsh.  (Ky.)  204.  6  Clark  v.  Pearson,  53  Ga.  496. 

3  Jones  v.  Tumour,    4  C.   &  P.   204; 

*In  Mooers  v.  Bunker,  29  N.  H.  421,  the  action  was  brought  in  assumpsit  for  money  had  and 
received.  The  specification  claimed  one-fifth  part  of  $265,  received  by  the  defendant  for  timber 
taken  from  the  lands  —  the  Paul  Eaton  lot,  so  called,  and  sold  by  one  John  Ray.  The  former 
owner  of  the  lands  died  in  1830,  leaving  a  son,  Henry,  and  four  other  children  and  their  legal 
representatives.  The  defendant  put  in  evidence  a  quit-claim  deed  executed  by  Henry  Eaton, 
and  dated  in  1844.  There  were  other  children  and  grandchildren  of  Paul  Eaton,  the  former 
owner  of  the  land,  and  the  father  of  Henry.  Mrs.  Mooers  was  a  daughter  of  Paul  Eaton,  and 
died  before  her  father.  She  left  four  children  and  it  was  not  known  that  either  of  them  had 
died.  These  were  the  plaintiffs,  and  their  identity  became  the  important  question  in  the  case. 
BELL,  J.,  said:  "  The  first  thing  to  be  proved  is  that  the  plaintiff  is  seized  of  the  share  he  claims 
of  the  real  estate.  If  his  name  was  John  Smith  or  John  Jones  or  any  of  the  common  or  frequently 
occurring  names,  it  would  be  at  once  apparent  that  to  prove  a  John  Smith  to  be  entitled  is  but 
one  step  to  show  the  plaintiff's  title,  the  next  is  to  prove  that  he  is  the  same  person.  In  the 
nature  of  things,  the  same  question  may  arise  in  every  case.  It  is  not  often  a  matter  of  con- 
troversy whether  the  identity  of  the  plaintiff  is  established;  because,  the  doubt,  if  any  arises, 
can  generally  be  readily  removed.  But  if  a  question  be  made,  a  jury  is  not  at  liberty  to  presume 
that  even  a  person  of  so  peculiar  a  name  as  Timothy  Mooers  is  the  same  person  as  the  man  of 
the  same  name  who  is  shown  to  be  entitled  to  a  particular  estate.  In  a  case  of  some  interest  at 
this  time,  the  Berkeley  Peerage  case,  4  Campb.  401,  a  failure  to  establish  the  identity  of  the 
plaintiff's  ancestor,  and  the  son  of  the  deceased  peer  of  the  same  name,  was  the  deficiency  in 
the  claim  of  the  claimant's  title.  Beyond  the  identity  of  name,  no  evidence  could  be  produced 
that  the  persons  were  the  same." 

9 


66  THE  LAW  OF  IDENTIFICATION 

Name  —  person  —  presumption. 

§  111.  Much  has  been  said  in  the  books  to  the  effect  that  the 
identity  of  name  is  prima  facie  evidence  of  the  identity  of  person, 
and  when  the  name  is  shown,  the  presumption  is  raised  of  the  iden- 
tity of  the  person ;  but  as  a  rule,  its  correctness  may  well  be  doubted. 
And  it  was  thought  that  the  name  would  not  raise  such  a  presump- 
tion, if  the  party  resided  in  Wales,  and  his  name  was  Jones.  But 
it  is  held  that  the  mere  identity  of  name  is  not  sufficient  evidence  of 
the  identity  of  the  person,  in  cases  where  it  is  shown  by  direct  tes- 
timony, or  even  by  inference,  that  there  are  more  than  one  person,  in 
the  place  or  circle  of  society,  who  bear  the  same  name.1  But  the 
inference  will  be  the  stronger  where  the  circumstances  render  it  im- 
probable that  there  are  two  persons  of  the  same  name  in  the  same 
place,  at  the  same  time.2  Identity,  however,  will  be  presumed  from 
the  name  and  other  facts  and  circumstances  indicating  or  pointing 
to  the  party  as  the  identical  person  in  question.3  These  facts  and 
circumstances  are  so  varied  that  it  would,  perhaps,  be  unsafe  to  un- 
dertake to  lay  down  any  general  rule  by  which  the  courts  can  afford 
to  indulge  the  presumption. 

Malicious  mischief —  boys  identified  in  court. 

§  112.  Several  young  boys,  fourteen  or  fifteen  years  of  age,  fre- 
quented the  house  of  the  prosecutor  almost  daily,  abusing  him  with 
insults,  calling  him  tory,  and  finally  broke  into  his  store  with  great 
violence  —  they  had  feigned  names  and  it  was  difficult  to  learn  who 
they  were.  On  the  trial,  after  proving  these  facts,  the  district  at- 
torney proceeded  to  identify  them  by  having  them  called  to  the  bar, 
and  interrogating  the  prosecutor  as  to  their  respective  names,  when 
counsel  objected,  and  observed  that  their  defense  would  rest  mainly, 

Ellsworth    v.   Moore,  5  Iowa,  486;  McCue,53Pa.  St.  427;  Grindle  v.  Stone, 

McMinn  v.  Whelan,  27  Cal.  300;  Jones  78  Me.  178;  Balbec  v.  Donaldson,  2  Grant 

v.  Jones,  9  M.  &  W.  75;  Morrissey  v.  (Pa.),  459;  Bogue   v.  Bigelow,   29  Vt. 

Ferry  Co.,  47  Mo.  521;  Reed  v.  Gage,  33  179;    State    v.    McGuire,   87   Mo.   642; 

Mich.  179;  Mooera  v.  Bunker,  29  N.  H.  Jackson  v.  Goes,  13  Johns.  518;   Graves 

420;  Moss  v.  Anderson,  7  Mo.  337;  Ben-  v.    Colwell,    90    111.    615;    Hatcher  v. 

nett  v.  Libhart,  27  Mich.  489;  Kinney  v.  Rocheleau,    18    N.    Y.    86;     Brown    v. 

Flynn,  2  R.  I.  319.  Metz,  33  111.  839. 

*  Murieta  v.  Wolfhagen,  2   C.  &  K.        3  Com.   v.    Costello,   120    Mass.   358; 

744;  Kelly  v.  Valney,  5  Pa.  L.  J.  Rep.  Jones  v.  Parker,  20  N.  H.  81;  Brown  v. 

800;  Sewell  v.  Evans,  4  Adol.  &  Ell.  (N.  Metz,  33111.  339;  Farmers' Bank  v.  King, 

S.)  626;    Greenshields   v.  Crawford,   9  57  Pa.  St.  202;  State  v.  Bartlett,  55  Me. 

M.  &  W.  314;  Jackson  v.  Cody,  9  Cow.  200;  Brotherlinev.  Hammond,  69  Pa.  St. 

140;  Heacock  v.  Lubukee,  108  111.  641;  128;  Hunt  v.  Stewart,  7  Ala.  (N.  S.)525; 

Cates  v.  lx)ftus,  3  A.   K.  Marsh.  (Ky.)  Dennis  v.  Brewster,  7  Gray,  351;  Ben- 

202;  Gitt  v.  Watson,  18  Mo.  274;  Doug-  nett  v.  Libhart,  27  Mich.  489. 
las  v.    Dakin,   46  Cal.  49;    Burford  v. 


NAME  —  IDEM  SONANS.  67 

upon  the  identity  of  the  defendants,  and  complained  of  unfairness, 
etc.,  and  that  they  should  be  identified  without  calling.  The  court 
replied  that  "  it  was  the  duty  of  the  defendants  to  be  present  at  the 
bar  of  the  court,  and  in  all  criminal  proceedings  were  always  sup- 
posed to  be,  and  no  trial  could  take  place  without  such  presence,  but 
by  consent.  If,  therefore,  the  counsel  for  the  defense  object  to  call- 
ing them  to  the  bar,  for  the  purpose  of  proving  them  the  same  per- 
sons concerned  in  the  riot,  the  court  would  be  obliged  to  forfeit  their 
recognizance  and  so  bring  them  up ;  and  was  proceeding  to  do  so 
when  counsel  for  the  defense  consented  that  they  might  be  called 
and  identified,  which  was  done.1 

Proof  of  identity  — letters  —  ancient  documents. 

§  113.  In  an  action  to  quiet  titles  to  lands  in  Ohio,  decided 
in  1887,  it  was  held,  substantially,  that  a  resemblance  between 
the  handwriting  upon  one  paper  and  that  upon  another  tends  to 
prove  that  both  were  written  by  the  same  person,  and  that,  there- 
fore, where  the  identity  of  a  person  is  in  issue,  it  is  competent  to  in- 
troduce letters  or  receipts  claimed  to  be  in  his  handwriting,  for  the 
purpose  of  comparison  with  other  writings,  admitted  or  clearly  proven 
to  have  been  written  by  him,  and  such  comparison  may  be  made.  An 
opinion  expressed  by  experts  as  to  handwriting  —  it  was  held  not 
necessary  to  the  admission  of  the  paper  claimed  to  be  in  the  hand- 
writing of  a  person  whose  identity  is  involved,  that  they  should  be 
clearly  proven  to  have  been  written  by  him.  Any  uncertainty  as  to 
this  will  affect  the  weight,  but  not  the  competency  of  the  evidence. 
That  a  letter  purporting  to  have  been  written  more  than  thirty  years 
ago  belongs  to  that  class  of  instruments  known  as  ancient  docu- 
ments ;  and,  where  produced  from  the  family  papers  of  the  person 
to  whom  it  had  been  addressed,  is  presumed  to  have  been  written  by 
the  person  by  whom  it  purports  to  have  been  written  ;  and,  the  writer 
and  the  person  addressed  being  dead,  is  admissible  in  evidence  with- 
out further  proof  of  its  authenticity.  And  so  a  pay-roll  of  a  military 
company  in  the  war  of  1812,  on  which  is  what  purports  to  be  the 
signature  of  a  soldier  to  a  receipt  for  pay  due  him,  produced  from 
the  archives  of  the  government  in  the  War  Department  at  Washing- 
ton City.2 

1  Poople   v.    Mount,    1    Wheeler  Cr.        »  Bell  v.  Brewster,  44  Ohio  St.  690. 
Cas.  411. 


68  THE  LAW  OF  IDENTIFICATION. 

Soldier  —  name  —  land  patent  —  family  records. 

§  114:.  In  an  action  of  ejectment  in  New  York,  in  1818,  brought 
by  the  heirs  of  Moses  Miner,  the  plaintiff  claimed  under  a  patent  is- 
sued to  Moses  Minner,  a  soldier  of  the  New  York  line  during  the 
revolutionary  war;  it  was  held  that  the  patent  was prima facie  evi- 
dence of  the  service  of  the  soldier  mentioned  in  it,  and  as  it  did  not 
appear  that  there  was  any  man  in  the  army  by  the  name  of  Minner 
the  variance  must  be  considered  a  mere  misspelling  of  the  name, 
which  could  not  affect  the  identity  of  the  person,  and  did  not  make 
it  a  distinct  name,  and  besides  the  defendants  claimed  under  a  soldier 
named  Moses  Minor,  who  there  was  strong  evidence  to  show  was 
the  same  as  the  person  under  whom  the  lessors  claimed .  Hearsay 
is  admissible  as  evidence  to  prove  the  death  of  a  person.  The  reg- 
ister of  marriages  and  births,  to  prove  pedigree  or  heirship.1 

Name  —  presumption — proof  of  signature. 

§  115.  In  an  action  on  a  judgment  debt  of  a  corporation,  against 
Henry  N.  Stone  of  Boston,  a  shareholder  therein,  the  certificate  of 
organization  was  signed  by  Henry  K.  Stone  of  Boston.  It  was  held 
that  the  defendant  was  the  same  person  who  signed  the  certificate  of 
organization  is  prima  facie  shown  by  the  identity  of  name,  in  the 
absence  of  any  evidence  of  another  person  of  that  name  in  Boston. 
And  this  seems  now  to  be  the  general  rule  as  to  identity  of  parties  to 
actions.2  To  prove  the  signature  of  a  person,  it  is  not  sufficient  to 
prove  that  the  signature  is  the  same  with  that  of  a  person  bearing 
the  same  name ;  but  it  is  necessary  to  produce  evidence  that  it  was 
written  by  the  same  person.3 

Proof  of  identity,  either  of  the  plaintiff  or  defendant,  with  one 
named  in  a  contract,  etc.,  is  never  necessary  in  the  first  instance- 
Producing  the  contract  bearing  the  same  name  with  the  party  in  the 
suit  is  prima  facie  sufficient,  and  throws  the  onus  upon  the  other 
party  to  produce  evidence  against  the  identity.4  Where  a  bond 
signed  by  several  obligors  came  collaterally  in  question,  one 

1  Jackson  v.  Boneham,  15  Johns.  226.  id.  503;  Douglas  v.  Dakin,  46  Cal.  49; 

'Grindle  v.  Stone,  78  Me.  176.     And  Hamber  v.  Roberts,  7  C.   B.  861;  Wil- 

see  Murieta  v.   Wolfhagen,  2  C.  &  K.  ton  v.  Edwards,  6  C.  &  P.  677;  Russell 

744;  Sewell  v.  Evans,  4  Adol.  &  El.  (N.  v.  Smyth,  9  M.  &  W.  810;  Reynolds  v. 

8.)  626;  Greenshields  v.  Crawford,  9  M.  Staines,  2  C.  &  K.  745;  Roden  v.  Ryde, 

&  W.  314;  Russell  v.  Tenno,  Pinckney  3  G.  &  D.  604. 

&  Co.,   11    Rich.  (8.  C.)  303;    Bell   v.  » Nelson  v.  Whittall,  IB.  &  Aid.  19; 

Brewster,  44  Ohio  St.  690;  Atchison  v.  Kinney    v.     Flynn,     2     Durfee,     319; 

M'Culloch,  5   Watts,    13;    Fletcher  v.  Jackson  v.    Christman,   4  Wend.   278; 

Conly,  2  Gr.  (Iowa>  88  ;   MOBS  v.    An-  Whitelocke  v.  Musgrove,  1  C.  &  M.  511. 

derson.  7  Mo.  837;  Wilbur  v.  Clark,  22  4  Jackson  v.  King,  5  Cow.  237. 


NAME  —  IDEM  SONANS.  69 

obligor  and  one  witness  were  of  the  same  name,  and  the  judge  at  the 
trial  admitted  the  bond  in  evidence  upon  the  proof  of  the  handwrit- 
ing of  the  other  witness,  shown  to  be  dead,  and  without  accounting 
for  the  absence  of  the  other  witness,  it  was  held  that  the  judge  erred ; 
that,  in  the  absence  of  proof,  he  was  not  authorized  to  say,  from  the 
identity  of  name,  that  the  obligor  and  the  witness  were  the  same  per- 
son.1 

Name  —  proof  —  deed  —  presumption  —  identity. 

§  116.  Oral  evidence  is  generally  competent  to  show  that  the 
plaintiff  is  the  same  person  as  the  defendant's  principal.  This  was 
held  in  an  early  case  in  Alabama.2  One  of  the  modes  of  proving 
identity  has  been  held  to  be  by  a  concurrence  of  several  characteris- 
tics.3 And  even  exparte  affidavits  have  been  held  admissible  in 
evidence  to  prove  the  identity  of  a  person,  so  far  as  it  respects  his 
marriage  or  pedigree.4  So  far  as  the  name  is  proof  of  the  identity 
of  the  person,  the  suggestion  of  death  of  a  plaintiff,  in  the  record  of 
the  case,  in  order  to  make  his  devisees  parties  plaintiff  to  the  action, 
was  hel&prima  facie  evidence  of  his  death,  for  all  the  purposes  of 
the  trial  of  the  case.  In  that  case  the  action  was  brought  to  recover 
possession  of  real  estate  in  the  State  of  Illinois,  and  involving  the  title 
thereto.  Plaintiff  Stebbins  claimed  under  a  sale  on  execution  in  a 
judgment  recovered  by  the  United  States  against  one  Duncan. 
Duncan's  title  was  derived  from  one  D unbar  to  one  Prout  in 
January,  1818,  and  recorded  in  October,  1838.  Defendants  claimed 
under  a  deed  from  Dunbarto  one  Frank,  dated  in  1818,  and  recorded 
in  1870.  The  suit  was  commenced  by  one  Morris,  who  died  pend- 
ing the  action.  His  death  was  suggested  on  the  record,  and,  at  the 
trial,  proof  of  the  probate  of  his  will  was  offered  as  proof  of  his 
death.  The  first  question  was  on  the  sufficiency  of  the  proof  of  that 
fact.  The  original  deed  from  Dunbar  to  Prout  was  witnessed  by 
Smallwood  of  Washington,  D.  C.  Smallwood  being  dead,  the 
genuineness  of  his  signature  was  proven  by  depositions.  The  next 
question  was  as  to  the  sufficiency  of  that  as  complete  proof  of 
the  identity  of  Dunbar.  It  was  held  that  the  execution  of  a  deed 
being  proved  according  to  law,  slight  proof  of  the  identity  of  the 

1  Jackson  v.  Cliristman,  4  Wend.  278.         3  Mullery  v.  Hamilton,  71  Ga.  720. 
*  Chandler  v.  Shehan,  7  Ala.  251.  4  Winder  v.  Little,  1  Yeates  (Pa.),  152. 


70  THE  LAW  OF  IDENTIFICATION. 

grantor  is   sufficient  —  that  in  tracing  titles,  identity  of   name  is 
prima facie  proof  of  identity  of  persons.1* 

Identity  of  name  —  when  sufficient  to  identify  the  person. 

§  117.  In  California  the  identity  of  name  is  held  to  be  presumptive 
evidence  of  the  identity  of  person  ;  and  where  William  J.  Douglas 
was  plaintiff  in  an  action  for  rent,  and  the  defendant  set  up  a  judg- 
ment obtained  in  another  court  against  William  J.  Douglas,  without 
any  averment  of  identity,  it  was  held  that  the  identity  of  the  parties 
was  to  be  presumed  from  the  identity  of  name.2  In  an  action  by  a 
messenger  of  the  court  of  bankruptcy  against  J.  S.,  it  appeared  from 
the  proceedings  under  thej^a^,  which  was  put  in,  that  the  name  of 
the  petitioning  creditor  was  "James  Roberts,"  but  it  was  objected, 
on  the  part  of  the  defendant,  that  there  were  no  particulars  of  demand 
annexed  to  the  writ  of  trial,  and  further,  that,  in  the  absence  of  some 
evidence  of  identity  with  the  person  so  named,  there  was  nothing 
to  go  to  the  jury.  It  was  ruled  otherwise,  and  the  jury  returned  a 
verdict  for  the  amount  claimed,  and  this  was  affirmed.3  And  so  it 
was  held  in  Maine  in  1886  —  in  an  action  on  a  judgment  debt  of 
a  corporation  against  Henry  N.  Stone  of  Boston,  a  shareholder 
therein,  the  certificate  of  organization  having  been  signed  by  Henry 
N.  Stone  of  Boston  —  that  the  fact  that  defendant  was  the  same 
person  who  signed  the  certificate  of  organization  was  prima  facie 
shown  by  the  identity  of  name,  in  the  absence  of  any  evidence  of 

1  Stebbins  v.  Duncan,  108  U.  S.  32.  3  Hamber  v.  Roberts,  7  M.,   G.  &  S. 

*  Douglas  v.  Dakin,  46  Cal.  49.  861. 

*In  Stebbins  v.  Duncan,  108  U.  S.  32,  Justice  WOODS  said:  "  It  was  further  objected  to  the  ad- 
mission in  evidence  of  the  proof  relating  to  the  deed  of  John  J.  Dunbar  to  Prout,  that  as  the 
testimony  to  establish  its  execution  was  the  proof  of  the  handwriting:  of  subscribing  witnesses, 
it  was  necessary  to  prove  the  identity  of  the  grantor  in  the  deed,  that  is  to  say.  that  the  John  J. 
Dunbar,  by  whom  the  deed  purported  to  be  executed,  was  the  same  John  J.  Dunbar  named  in 
the  patent  for  the  lands  in  controversy.  In  any  case  slight  proof  of  identity  is  sufficient. 
Nelson  v.  Whittall,  1  B.  &  Aid.  19;  Warren  v.  Anderson,  8  Scott,  384;  1  Selwyn  N.  P.  538: 
n.  7, 18th  ed.  But  the  proof  of  identity  in  this  case  was  ample.  In  tracing  titles,  Identity  of 
names  is  prima  facie  evidence  of  identity  of  persons.  Brown  v.  Metz,  33  111.  339;  Gates  v. 
Loftus,  3  A.  K.  Marsh.  202;  Oittv.  Watson,  18  Mo.  274;  Balbec  v.  Donaldson,  2  Grant  (Pa.),  459; 
Bogue  v.  Bigelow,  29  Vt.  179;  Chamblee  v.  Tarbox,  27  Tex.  139.  See,  also,  Sewell  v.  Evans,  4 
Adol.  &  El.  (N.  S.)  626;  Rodenv.Ryde,  id.  629.  There  was  no  evidence  that  more  than  one  John  J . 
Dunbar  lived  at  the  date  of  the  deed  in  Matthias  county,  Virginia,  which  the  deed  recites  was 
the  residence  of  the  grantor,  nor  in  the  District  of  Columbia,  where  the  deed  was  executed,  and 
there  was  no  other  proof  to  rebut  the  prima  facie  presumption  raised  by  the  identity  of  names 
in  the  patent  and  deed.  But  besides  the  identity  of  names,  tlu-ro  was  other  evidence  showing 
the  identity  of  persons.  The  patent  and  the  deed  bore  date  the  same  day,  and  the  patent  was 
recited  in  hoc  verbo  in  the  deed.  These  circumstances  tend  strongly  to  snow  that  the  party  by 
whom  the  deed  was  executed  must  have  had  possession  of  the  patent.  The  deed  recites 
that  the  patept  was  delivered  to  the  grantor,  John  J.  Dunbar,  and  the  affidavit  of  John  J.  Dun- 
bar,  sworn  to  and  subscribed  on  January  7,  1818,  before  Smallwood,  a  justice  of  the  peace,  and 
one  of  the  subscribing  witnesses  to  the  deed,  whose  signature  to  the  jurat  is  shown  to  be  genuine, 
to  the  effect  that  he  was  the  same  John  J .  Dunbar  to  whom  the  patent  was  issued,  was  Indorsed 
upon  the  deed  After  a  lapse  of  sixty-one  years,  this  evidence  is  not  only  admissible  to  prove 
the  Identity  of  the  grantee  in  the  patent  with  the  grantor  in  the  deed,  but,  uncontradicted,  Is 
conclusive." 

And  so  we  see  that  while  Identity  of  name  Is  not  always  evidence  of  Identity  of  person,  yet  it 
is  always  so  treated  in  tracing  titles:  and  in  all  CUSPS  slight  proof  of  identity  is  sufficient,  prima 
,  and,  when  it  is  not  contradicted,  it  la  conclusive. 


NAME  —  IDEM  SONANS.  71 

another  person  of  the  same  name  residing  in  the  city  of  Boston.1 
In  an  action  of  ejectment  in  Missouri,  decided  in  1842,  it  was  held 
not  to  be  necessary  to  call  the  subscribing  witnesses  to  the  deed  to 
prove  the  identity  of  the  grantor,  or  to  account  for  their  absence, 
nor  was  their  presence  necessary  by  the  rule  that  the  best  evidence 
should  be  produced.  That  the  proof  of  the  identity  of  the  grantor 
in  a  deed,  by  a  person  who  is  not  a  subscribing  witness,  was  not  in- 
ferior, as  evidence,  to  the  proof  of  the  fact  by  one  who  has  testified 
that  he  attested  it  as  a  witness.2 

Junior  —  middle  letter  —  name  —  immaterial  variance. 

§  118.  In  the  title  of  an  act  incorporating  the  Wabash.  Railroad 
Company,  the  act  described  the  corporation  as  "  the  Wabash  Yalley 
Railroad  Company,"  and  where  the  company  in  bringing  suit  was 
described  as  the  Wabash  Railroad  Company,  it  was  held  to  be  no 
variance.3  It  was  held  in  New  York  that  the  addition  of  "  junior " 
to  a  name  is  mere  matter  of  description,  and  forms  no  part  of  the 
name ;  neither  is  the  middle  letter,  between  the  Christian  and  sur- 
name, any  part  of  the  name,  for  the  law  knew  of  only  one  Christian 
name ;  and  where  it  appeared  that  a  middle  letter  was  inserted  in  a 
name  upon  a  ballot  by  mistake,  it  might  be  rejected.  An  action  was 
brought  in  the  nature  of  a  quo  warranto  against  Cook,  to  test  his 
right  to  hold  the  office  of  State  treasurer  of  New  York.  The  ques- 
tion was,  whether  the  ballots  cast  for  Benjamin  C.  Welch,  Jr.,  and 
those  cast  for  Benjamin  Welch,  without  the  addition  of  the  "  Jr. ," 
were  intended,  by  those  who  voted  them,  for  Benjamin  Welch,  Jr., 
and  it  was  held  as  above  indicated.4  The  addition  of  "junior," 
being  no  part  of  a  man's  name,  it  was  held  in  Kentucky  that  a  per- 
son to  whom  a  promissory  note  was  assigned,  with  the  addition  of 
junior,  might  assign  it  to  another  party,  omitting  the  "junior,"  and 
his  assignee  could  maintain  an  action  on  it  against  the  maker  of  the 
note  — •  that  it  was  a  question  of  identity,  as  to  who  was  the  real 
owner  of  the  note,  and  that  question  could  not  be  raised  on  demurrer.5 
In  a  proceeding  in  New  Hampshire,  to  the  record  of  a  proceeding 
to  lay  out  a  public  highway,  an  objection  was  made,  because  in  the 
information  one  of  the  termini  was  stated  to  be  "  near  the  black- 
smith shop  of  William  B.  White,"  and  in  the  record  as  being  "  near 
the  blacksmith  shop  of  William  D.  White,"  the  court  allowed  an 

1  Grindle  v.  Stone,  78  Me.  176.  «  People  v.  Cook,  14  Barb.  259. 

*  Moss  v.  Anderson,  7  Mo.  337.  B  Johnson    v.  Ellison,  4  T.  B.  Mon. 

8  Peake  v.  Railroad  Co.,  18  111.  88.          (Ky.)  526. 


72  THE  LAW  OF  IDENTIFICATION. 

amendment,  and  this  was  sustained  on  appeal.1  One  Grant  was  in- 
dicted in  Maine  for  larceny,  in  which  indictment  it  was  charged  that 
the  property  so  stolen  was  the  property  of  one  Eusebius  Emerson 
of  Addison,  and  the  proof  showed  that  there  were  in  the  town  of 
Addison  two  men  of  the  name  of  Eusebius  Emerson,  a  father  and 
son,  and  that  the  property  belonged  to  the  son,  who  had  usually 
signed  his  name  with  the  addition  of  "junior"  thereto.  It  was  held 
that  the  "junior"  was  no  part  of  the  man's  name,  and  that  the 
ownership  of  the  property,  as  alleged  in  the  indictment,  was  suffici- 
ently proved.2 

Identity  ot  name  —  goods  delivered  to  a  swindler. 

§  119.  A  peculiar  case  of  fraud,  by  assuming  the  name  of  another, 
occurred  in  Massachusetts  and  was  decided  in  1883.  An  action 
of  tort  was  brought  for  the  conversion  by  the  carrier  of  a  quantity  of 
cigars.  The  facts,  as  they  appear  in  the  opinion  of  the  court,  are, 
that  in  June,  1881,  a  swindler,  assuming  the  name  of  A.  Swannick, 
sent  a  letter  to  the  plaintiff,  asking  for  a  price  list  of  cigars,  and 
giving  his  address  as  "A.  Swanuick,  P.  O.  Box  1595,  Saratoga 
Springs,  N.  Y."  The  plaintiff  replied,  addressing  his  letter  accord- 
ing to  this  direction.  The  swindler  then  sent  another  letter,  order- 
ing a  quantity  of  cigars.  The  plaintiff  forwarded  the  cigars  by  the 
defendant,  who  was  a  common  carrier,  and  at  the  same  time  sent  a 
letter  to  the  swindler,  addressed  "  A.  Swannick,  Esq.,  P.  O.  Box 
1595,  Saratoga  Springs,  N.  Y.,"  notifying  him  that  he  had  so  for- 
warded the  goods.  There  was  at  the  time  in  Saratoga  Springs  a 
reputable  dealer  in  groceries,  liquors  and  cigars,  named  Arthur 
Swannick,  who  had  his  shop  at  the  comer  of  Ash  street  and  Frank- 
lin street,  and  who  issued  his  cards  and  held  out  his  name  on  his 
signs  and  otherwise  as  "A.  Swamfick."  He  was  in  good  credit, 
and  was  so  reported  in  the  books  of  E.  Russell  &  Co.,  a  well-known 
mercantile  agency,  of  whom  the  plaintiff  made  inquiries  before  send- 
ing the  goods.  The  plaintiff  supposed  that  the  letters  were  written 
by,  and  that  he  was  dealing  with,  Arthur  Swannick.  He  sent  the 
goods  by  defendant,  the  packages  being  directed  to  A.  Swannick, 
Saratoga  Springs,  N.  Y.  The  defendant  carried  the  packages  safely 
to  Saratoga  Springs.  On  July  1,  the  defendant,  by  its  agent,  carried 
a  package  of  cigars  directed  to  A.  Swannick  to  the  said  Arthur 

1  State  v.  Weare,  38  N.  H.  814. 

*  State  v.  Grant,  22  Me.  171.  And  see  People  v.  Collins,  7  Johns.  549. 


NAME  —  IDEM  SOXANS.  73 

Swannick ;  he  refused  to  receive  it  on  the  ground  that  he  had  not 
ordered  the  cigars;  afterward  the  defendant  carried  the  cigars  to 
the  shop  No.  16  Congress  street,  and  delivered  them  to  the  person 
appearing  to  be  the  occupant  of  the  shop,  and  took  receipts  signed 
"  A.  Swannick."  It  was  held  that  the  carrier  was  not  liable.1 

Same  —  goods  delivered  —  same  name. 

§  120.  An  action  of  tort  was  brought  in  Massachusetts,  and  deci> 
ded  in  1872,  against  a  common  carrier.  It  appeared  that  on  October 
17,  1870,  John  F.  Gorman,  a  stranger  to  the  plaintiff,  representing 
himself  to  be  John  H.  Young  of  Providence  in  Rhode  Island,  pur- 
chased liquors  of  plaintiff  at  Boston,  on  a  credit  of  thirty  days. 
They  were  marked  by  his  order,  "  John  H.  Young,  Providence,  R. 
I.,"  were  delivered  to  defendants  to  be  carried  to  Providence,  were 
so  carried,  and  were  received  there  and  stored  in  defendants'  freight- 
house,  on  October  19.  In  the  bill  of  lading  the  defendants  promised 
to  deliver  the  goods  at  Providence  to  John  H.  Young  or  order;  and 
the  plaintiff  sent  the  bill  of  lading  to  "  John  H.  Young  of  Provi 
dence,  R.  I."  But  the  letter  containing  it  remained  in  the  posk 
office  at  Providence,  until  re-mailed  to  plaintiff,  on  November  23. 
On  October  29,  Gorman  called  at  the  freight-house  in  Providence, 
asked  for  the  liquors  as  the  property  of  John  H.  Young,  and  paid 
the  freight ;  and  the  liquors  were  delivered  to  him  upon  his  receipt, 
which  he  signed  "  John  F.  Gorman."  Gorman  was  known  to  the 
clerk  who  delivered  the  liquors.  No  person  named  John  H.  Young 
resided  or  did  business  at  Providence,  and  no  person  authorized  the 
purchase  of  the  goods  by  Gorman  in  that  name.  After  the  delivery 
to  Gorman,  plaintiffs  demanded  the  liquors  from  the  defendants. 
CHAPMAN,  C.  J.,  said :  "  The  plaintiff  sold  the  gin  and  whisky, 
which  are  the  subject  of  this  action,  to  a  person  calling  himself  J  ohn 
H.  Young  of  Providence,  and  delivered  them  to  the  defendants,  to 
be  carried  to  the  same  person  in  Providence  by  the  same  name.  As 
he  was  the  only  person  in  Providence  who  bore  that  name,  there 
was  no  other  individual  to  whom  the  defendants  could  deliver  the 
property.  A  delivery  to  him  would  be  a  performance  of  the  con- 
tract. The  fact  that  he  was  known  to  the  delivery  clerk  as  John  F. 
Gorman  made  it  necessary  for  him  to  conceal  from  the  clerk  the 

1  Samuel    v.  Cheney,  135  Mass.  278.  M'Kean  v.  M'lvor,  L.  R.,  6  Exch.   36; 

Citing   Cundy  v.  Lindsay,  3  App.   Cas.  Heugh    v.    R.    Co.,    L.   R.,    5    id.    51; 

459;  Dunbar  v.  R.  Co.,   110  Mass.   26;  Clough  v.  R.  Co.,  L.  R.,  7  id.  26. 
10 


74  THE  LAW  OF  IDENTIFICATION. 

fictitious  name,  and  to  pretend  that  he  was  acting  as  agent  for  John 
H.  Young.  He  was  thus  enabled  to  obtain  the  property,  but  by 
means  of  this  deceit,  the  property  reached  the  person  to  whom  the 
plaintiff  sold  and  consigned  it.  Thus  the  contract  of  the  defendants 
was  performed  in  its  spirit  and  letter,  and  the  plaintiff  has  no  cause 
of  action  against  them."1 

Identity  of  stranger  by  name  merely. 

§  121.  An  action  having  been  brought  on  a  note,  the  execution  of 
the  note  was  not  denied,  it  was  even  admitted.  But  the  defendant 
pleaded  and  relied  upon  the  statute  of  limitations,  and  the  plaintiff 
called  a  witness  who  testified  that,  acting  as  his  attorney,  he  had  ad- 
dressed a  letter  through  the  post-office  to  the  defendant,  with  whom 
the  witness  was  not  personally  acquainted,  on  the  subject  of  the  claim 
sued  on,  and  that  he  received  a  reply,  and  that  soon  thereafter  a  per- 
son called  at  the  office  of  the  witness  and  introduced  himself  as  the 
defendant,  and,  in  conversation  respecting  the  claim,  made  such  prom- 
ises as  would  take  the  case  out  of  the  statute  of  limitations.  The  de- 
fendant's name  being  an  unusual  one,  and  no  attempt  having  been 
made  to  show  a  false  personation,  this  was  held  to  besufficient^?m7i# 
facie  proof  of  identity  to  be  allowed  to  go  to  the  jury.2  This  prima 
facie  case  was  not  made  upon  the  mere  fact  of  the  name,  but  the  pre- 
vious correspondence  respecting  the  claim  had  brought  the  defendant 
to  the  office  of  the  witness,  where  the  conversation  ensued  and  the 
promise  was  made.  These  circumstances  left  the  identity  reasonably 
certain.  But  the  general  rule  is,  that  where  the  name  is  identical, 
that,  of  itself,  is  prima  facie  evidence  of  the  identity  of  the  person, 
and  this  will  throw  the  onus  probandi  upon  the  party  whose  identity 
is  in  doubt  or  dispute.3  But  this  presumption,  like  other  presump- 
tions, may  be  rebutted  or  overcome  by  countervailing  evidence.4 
Mr.  Bishop  says:  "In  reason,  the  identity  of  a  person  charged 
with  an  offense  requires  fully  as  much  care  as  the  corpiis  delicti. 
The  cases  are  numerous  wherein  witnesses  have  been  mistaken  on 
this  point,  or  if  there  is  to  be  perjury,  it  is  upon  this  that  it  is  more 
likely  to  appear.  And  there  is  no  more  excuse  for  punishing  a  de- 
fendant, when  another  has  committed  a  crime,  than  when  no  one 
has.  The  rule,  therefore,  should  be,  that,  the  special  facts  and  cir- 
cumstances being  brought  into  view,  the  jftdge  should  caution  the 

»  Dunbar  v.  Railroad  Co., 110  Mass.  26.         3  Gitt  v.  Watson,  18  Mo.  274. 
»  Kelly  v.  Valney,  2  Am.  L.  Reg.  499.         4  Sitler  v.  Gehr,  105  Pa.  St.  577. 


NAME  —  IDEM  SONANS.  T5 

jury  as  to  any  part  of  the  case  at  which  they  are  liable  to  be  misled, 
whether  the  corpus  delicti,  the  identity,  or  any  other,  and  they 
should  convict  when,  and  only  when,  taking  all  into  consideration, 
they  affirmatively  believe  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  is  guilty  as  charged.1  * 

Same  name  —  father  and  son  —  rule. 

§  122.  We  have  seen  that  where  there  are  two  persons  of  the  same 
name,  as  father  and  son,  the  elder  is  presumed  to  be  the  person 
named,  in  the  absence  of  any  addition  to  the  name ;  but  this  is  a  mere 
presumption,  and  may  be  explained  or  rebutted,  if  not  true.2  It  was 
held  in  Pennsylvania  to  be  error  to  submit  to  the  j  ury ,  without  other 
proof,  the  question  whether  R.  P.  O'Neil,  who  executed  a  deed,  was 
Rev.  Patrick  O'Neil,  the  former  owner  of  the  land.3  And  where  a 
deed  was  made  to  one  of  two  persons  of  the  same  name,  the  one  the 
father  and  the  other  the  son,  both  residing  together  on  the  premises 
described  in  the  deed,  it  was  held  to  be  error  to  exclude  from  the 
jury,  by  instructions,  the  character  and  circumstances  of  the  occu- 
pancy, as  bearing  upon  the  question  whether  the  deed  was  made  to 
the  father  or  the  son.4 

"Where,  in  England,  a  promissory  note  was  payable  to  the  order 
of  J.  H.,  and  it  was  indorsed  by  J.  H.  to  the  plaintiff,  and  there  ap- 
peared to  be  two  persons  of  the  same  name,  father  and  son,  and 

1  Bishop  Grim.  Proc.  (3d  ed.),  §  160.  *  Graves  v.  Colwell,  90  111.  613;  State 

8  Bennett  v.    Libhart,  27  Mich.  489;     v.  Vittum,  9  N.  H.  521 ;  Lepiot  v.  Browne, 

Bate  v.  Burr,  4  Harr.  (Del.)  130.  1  Salk.  7. 

3  Burford  v.  McCue,  53  Pa.  St.  427. 

And  see  McMinn  v.  Whelan,  27  Cal.  300. 

*Mr.  Taylor,  in  his  valuable  work  on  the  Law  of  Evidence,  on  the  subject  of  identity,  at 
§  1657,  gives  us  the  f  ollowing  remarks :  "  It  may,  however,  here  be  observed  that  the  description 
in  the  declaration  cannot  properly  be  said  to  prove  the  identity  of  the  defendant.  The  question 
is,  who  was  served  with  the  writ,  and  who  has  pleaded  to  the  action?  and  it  is  obvious  that  no 
description  which  the  plaintiff  chooses  to  introduce  into  his  statement  of  his  own  case  can  in 
strictness  answer  this  question  or  affect  the  defendant's  interest.  This  remark  is  made  be- 
cause in  the  case  of  Greenshields  v.  Crawford,  9  M.  &  W.  314,  the  court  appears  to  have  acted 
upon  a  similar  mistake.  The  decision  in  Smith  v.  Henderson,  9  M.  &  W.  818,  was  right,  not  be- 
cause the  defendant  was  described  By  the  plaintiff's  declaration  as  a  pilot,  but  because  the  ac- 
cident was  proved  to  have  been  caused  by  a  pilot  named  Henderson,  and  a  person  answering 
that  name  and  description  was  present  in  court,  and  might  fairly  be  presumed  to  be  the  same 
Mr.  Henderson  who  had  pleaded  to  the  action.  In  another  case  in  which  a  witness,  called  to 
prove  the  defendant's  handwriting,  had  corresponded  with  the  person  bearing  his  name,  who 
dated  his  letters  at  Plymouth  Dock,  where  the  defendant  resided,  and  where  it  appeared  that  no 
other  person  of  the  same  name  lived,  the  evidence  of  identity  was  held  to  be  sufficient.  Har- 
rington v  Fry,  Ry.  &  M.  90,  per  BEST.  C.  J.  And  In  Warren  v.  Sir  J.  C.  Anderson,  Bart.,  8  Scott, 
384,  where  the  only  proof  of  defendant's  signature  to  a  bill  was  given  by  a  clerk  of  Messrs. 
Coutts,  who  stated  that  two  years  before  the  trial  he  saw  a  person  whom  he  did  not  know,  but 
who  called  himself  Sir  J.  C.  Anderson.  Bart.,  sign  his  name,  that  he  had  since  seen  checks, 
similarly  signed,  pass  through  the  banking-house,  and  that  he  thought  the  handwriting  was  the 
same  on  the  bill,  the  court  held  that  the  evidence,  weak  as  it  confessedly  was,  might  be  sub- 
mitted to  the  consideration  of  the  jury . "  It  is  not  upon  the  weakness  or  the  strength  of  the 
evidence  that  the  court  will  submit  it  to  the  consideration  of  the  jury,  but  upon  its  competency 
and  relevancy.  If  the  court  should  exclude  competent  testimony  from  the  jury  because  of  Its 
weakness,  the  judge  would  first  have  to  pass  upon  the  weight  of  it,  and  thus  invade  the  province 
of  the  jury. 


76  THE  LAW  OF  IDENTIFICATION. 

there  was  no  evidence  to  show  to  which  of  the  two  the  note  was 
given,  but  it  appeared  that  the  indorsement  was  in  the  handwriting 
of  J.  H.,  the  son,  it  was  held  that,  although  the  presumption  would 
be  prima  facie  that  J.  H.,  the  father,  was  meant,  the  son's  indorse- 
ment rebutted  that  presumption.1 

"Weight  of  evidence  as  to  identity  —  indictment. 

§  123.  Where  the  identity  of  the  defendant  on  the  trial  of  an  in- 
dictment becomes  a  question,  the  burden  of  proof  is  on  the  prosecu- 
tion to  identify  the  defendant  with  the  perpetrator  of  the  crime. 
So,  in  an  indictment  for  burglary,  decided  in  Connecticut,  in  1879, 
a  question  of  identity  of  the  accused  was  made  by  the  defense,  and 
evidence  was  introduced  on  both  sides  upon  this  point.  The  judge 
charged  the  jury  that  it  was  for  them  to  decide  on  which  side  of  the 
question  of  identity  was  the  weight  of  evidence.  This  was  held  to 
be  error  as  stated.  The  court  said  :  "  If  the  court  intended  by  this 
to  say  that  the  accused  should  be  convicted  if  the  bare  preponderance 
of  proof  on  the  question  was  with  the  State,  and  the  jury  so  under- 
stood it,  it  was  clearly  erroneous.  But  it  is  obvious  that  the  court 
did  not  so  intend,  and  that  the  jury  did  not  so  understand  it.  In- 
deed they  could  not  so  understand  it  without  imputing  to  the  court 
the  most  glaring  inconsistency.  The  question  of  identity  was  a  vital 
one.  If  the  State  were  not  right  in  its  claim  the  accused  could  not  be 
convicted.  The  jury  were  told  in  another  part  of  the  charge,  that 
in  order  to  convict  the  accused,  the  State  must  prove,  beyond  a  rea- 
sonable doubt,  that  he  committed  the  burglary."2  This  seems  ex- 
tremely doubtful. 

Name  —  presumption  of  identity  —  burglary. 

§  124.  In  another  case  of  burglary,  decided  in  Missouri  in  1882, 
it  was  held  on  the  question  of  identity  that  identity  of  names  with 
an  alias  added  was  sufficient  to  raise  a  presumption  of  identity  of 
persons.  But  the  conviction  was  reversed  because  of  two  offenses  — 
burglary  and  larceny — being  embraced  in  one  count.3  But  it  is  a 
mere  presumption  open  to  rebuttal,  and  it  alone  is  insufficient  to 
prove  identity,  as  we  have  seen,  where  the  name  is  common  in  the 
community  where  the  defendant  resides.  In  an  indictment  in  North 
Carolina,  in  1883,  for  a  conspiracy  to  commit  a  rape  upon  a  certain 

1  Stebbing  v.  Spicer,  8  M.,  Q.  &  8.  827;        *  State  v.  Morris,  47  Conn.  179. 
8  C.  B.  827.  8  State  v.  Kelsoe,  76  Mo.  505. 


NAME  —  IDEM  SONANS.  77 

female,  it  was  held  that,  although  the  name  of  the  person  upon  whom 
an  offense  is  charged  to  have  been  committed,  be  to  the  jurors  un- 
known, yet  the  proof  must  identify  the  party  injured  as  completely 
as  if  his  real  name  appeared  in  the  indictment.1  The  infer- 
ence of  identity  strengthens  with  circumstances  which  indicate  the 
probability  of  two  persons  at  the  same  time,  of  the  same  name,  re- 
siding at  the  same  place ;  names,  with  other  circumstances,  raise  a 
presumption  of  identity. 

Forgery  —  opinion  evidence  —  signature. 

§  125.  One  Hopkins,  having  been  indicted  for  forgery  in  Vermont, 
in  1877,  for  forging  the  name  of  Charles  H.Green,on  a  bill  of  exchange 
for  $541.10,  payable  to  said  Green,  on  the  Fire  Association  of  Phila- 
delphia. On  the  trial  the  State  introduced  a  witness  who  testified, 
from  his  knowledge  of  Green's  handwriting,  that  he  was  of  opinion 
that  the  signature  in  question  was  a  forgery.  On  cross-examination, 
a  signature  which  had  been  used  in  the  trial,  and  was  acknowledged 
to  be  genuine,  was  shown  to  the  witness,  and  he  was  asked  to  point 
out  the  difference  between  that  signature  and  the  one  in  question. 
This  testimony  was  excluded  because  the  witness  was  not  an  expert ; 
but  this  was  held  to  be  error.  The  court  said :  "  The  weight  to  be 
given  to  the  opinion  of  a  witness  who  bases  his  opinion  upon  famil- 
iarity with  handwriting  depends  largely  upon  the  extent  of  his 
familiarity ;  and  for  the  purpose  of  testing  that  and  his  ability  to 
distinguish  between  a  signature,  that  which  is  claimed  to  be  forged 
and  one  that  has  been  used  upon  the  trial  and  acknowledged  to  be 
genuine,  it  is  the  right  of  the  party  accused  of  committing  the  for- 
gery to  inquire  of  the  witness  what  difference  there  is  between  the 
two  signatures."2 

Inference  or  conclusion —  opinion. 

§  126.  The  rule  is  laid  down,  in  substance,  that  "  opinion,  so  far 
as  it  consists  of  a  statement  of  an  effect  produced  on  the  mind,  be- 
comes primary  evidence,  and  hence  admissible  whenever  a  condi- 
tion of  things  is  such  that  it  cannot  be  reproduced  and  made  palpa- 
ble in  the  concrete  to  the  jury.  Eminently  is  this  the  case  with  re- 
gard to  noises  and  smells ;  the  questions  of  identification,  where  a 
witness  is  allowed  to  speak  as  to  his  opinion  or  belief,  and  to  the 
question  whether  a  party  believed  himself  at  the  time  to  be  in  great 

1  State  v.  Trice,  88  N.  C.  627.  2  State  v.  Hopkins,  50  Vt.  316. 


78  THE  LAW  OF  IDENTIFICATION. 

danger  of  death."1  But  not  as  to  his  inference  and  conclusion.  So, 
in  Texas  in  a  trial  for  adultery,  the  court  below  permitted  a  witness, 
over  defendant's  objection,  after  he  had  narrated  circumstances  in 
which  he  discovered  the  defendants,  to  state  that  he  suspected  there- 
from that  they  had  been  copulating.  It  was  held  to  be  error  to  ad- 
mit the  witness'  suspicions  and  his  inferences.2  To  admit  the  opinion 
of  a  witness  as  evidence  in  a  proper  case  is  one  of  the  recognized  ex- 
ceptions to  the  general  rule,  but  it  will  not  be  extended  to  mere  con- 
clusion, suspicion  or  inference. 

Liability  assumed  by  a  stranger. 

§  127.  In  an  action  against  the  proprietors  of  a  stage,  brought  in 
New  York  in  1854,  for  injuries  to  a  wagon  owned  by  the  plaintiff, 
caused  by  the  negligence  of  the  defendant's  driver.  The  action  was 
against  Lent  and  Mulford.  The  return  of  the  justice  certified  that 
at  the  close  of  the  testimony,  "  the  plaintiff  rested  and  discontinued 
against  the  defendant  Mulford,  and  the  defendant  moved  for  a  non- 
suit, which  motion  was  denied,  when  the  case  was  submitted."  But 
judgment  was  rendered  against  both  defendants,  and  defendants  ap- 
pealed. The  court  said,  assuming  that  the  plaintiff  sufficiently  proved 
that  his  wagon  was  injured  by  a  person  who  was  driving  the  stage, 
the  only  evidence  that  either  of  these  defendants  was  responsible 
was  that  of  the  plaintiff's  son,  who  testified  that  two  gentlemen 
called  upon  his  father  and  conversed  on  the  subject,  and  one  of  them 
answered  to  the  name  of  "  Lent,"  and  that  the  latter  wished  the 
wagon  sent  to  his  place  to  be  repaired,  and  both  were  satisfied  that  it 
was  their  stage  by  which  the  injury  was  caused.  This  by  no  means 
identified  the  defendants  as  owners  of  the  stage.  The  witness  was 
not  acquainted  with  the  defendants,  and  they  could  not  be  charged 
because  some  person  assumed  to  admit  the  liability.3 

Courts  will  not  presume  identity. 

§  128.  The  courts  will  not  presume  identity  of  a  party  or  person, 
and  it  was  held  in  Iowa  that  the  court,  while  it  knew  judicially  the 
judges  of  the  different  judicial  districts  of  the  State,  and  would  pre- 
sume, in  the  absence  of  any  showing  to  the  contrary,  that  the  courts 
of  the  districts  are  held  by  such  judges,  it  cannot  know  that  the  at- 
torney J.  D.  Thompson  and  the  Hon.  J.  I).  Thompson,  judge  of  the 
thirteenth  judicial  district,  are  one  and  the  same  person.  The  name 

1  Whart.  Cr.  Ev.,  §459,  and  cases  »  McKnight  v.  State,  6  Tex.  App.  158. 
cited.  z  Fanning  v.  Lent,  8  E.  D.  Smith,  206. 


NAME — IDEM  SONANS.  79 

alone  of  a  person  is  not  sufficient  to  identify  the  person.1  And 
this  rule  was  held  in  Michigan  in  a  recent  case.2  And  in  an  im- 
portant case  in  Pennsylvania,  involving  the  title  to  real  estate,  it  was 
held  error  to  submit  to  the  jury,  without  other  proof,  the  question 
whether  "R.  P.  O.  Neil,"  who  executed  a  deed,  was  Rev.  Patrick 
O'Neil,  the  owner  of  the  land.3 

Names  —  rule  in  election  cases  —  candidates. 

§  129.  Every  name  should  be  fully  and  properly  given  and  ex- 
pressed, but  errors  in  spelling,  as  we  have  seen,  will  not  defeat  the 
purpose;  if  the  sound  is  the  same,  it  is  within  the  rule  of  idem  sonans; 
thus,  in  election  cases  where  the  name  is  written  on  a  ballot,  if  it  be 
so  written  as  to  leave  no  reasonable  doubt  as  to  the  intention,  it 
should  be  counted,  but  if  a  ballot  contain  two  names  for  the  same 
office,  it  is  bad  as  to  both,  but  it  is  not  to  be  rejected  as  to  candi- 
dates for  other  offices  on  the  same  ballot.  And  where  there  was  a 
doubt  as  to  the  individual  intended  to  be  voted  for,  on  account  of 
the  misspelling  of  the  surname  or  the  addition  of  different  or  er- 
roneous Christian  names,  facts  and  circumstances  of  public  notoriety 
dehors  the  ballot,  connected  with  the  election  and  the  different  can- 
didates, are  competent  evidence  to  ascertain  for  whom  the  voter  in- 
tended to  cast  the  ballot.4 

Same  —  election — rule  in  several  States. 

§  130.  In  a  Michigan  case  one  Michael  Finnegan  was  the  relator 
in  quo  warranto.  It  was  held  that  where  ballots  were  cast  for 
Michael  Finnegan,  the  relator,  by  the  name  of  Michael  Finegan,  the 
rule  of  idem  sonans  applied,  and  that  they  should  all  have  been 
counted  for  the  relator.5  In  an  Illinois  contested  election  case  in 
1888,  it  was  shown  that  there  were  but  three  candidates  for  county 
treasurer  —  John  B.  Kreitz,  the  democratic  nominee,  Charles  F.  A. 
Behrensmeyer,  the  republican  nominee,  and  B.  L.  Dickerman,  the 
prohibition  nominee,  and  that  Kreitz  had  a  brother  named  John  M. 
Kreitz,  who  was  not  a  candidate,  and  that  John  B.  Kreitz  was  ordi- 
narily known  and  called  John  Kreitz,  while  John  M.  Kreitz  was  or- 
dinarily known  and  called  Matt  Kreitz.  It  was  held  that  some 
tickets  bearing  the  name  of  John  M.  Kreitz  for  county  treasurer 
were  properly  counted  for  John  B.  Kreitz.6 

1  Ellsworth  v.  Moore,  5  Iowa,  486.  4  Carpenter  v.  Ely,  4  Wis.  420. 

2  Bennett  v.  Libhart,  27  Mich.  489.  6  People  v.  Maywonn,  5  Mich.  146. 

8  Burford  v.  McCue,  53  Pa.  St.  427.          •  Kreitz  v.  Behrensmeyer,  125  111.  146. 
And  see  McMinn  v.  Whelan,  27  Cal.  300. 


80  THE  LAW  OF  IDENTIFICATION. 

In  Missouri  in  1888,  there  were  but  two  candidates  for  an  office, 
their  names  being  so  unlike  that  there  could  be  no  danger  of  mis- 
take, and  the  election  was  confined  to  one  county,  which  was  largely 
German.  It  was  held  that  the  court  might  well  find  that  the  bal- 
lots cast  for  "  J.  D.  Hubba,"  "  J.  D.  Huba,"  "Huber,"  and  «  J.  D. 
Hub,"  and  "  D.  Huber "  were  all  intended  and  should  be  counted 
for  the  candidate  «  J.  D.  Hubbard."1 

Same  —  contest  for  office — rule. 

§  131.  In  an  early  New  York  case,  in  a  contest  for  the  office  of 
county  clerk,  the  case  was  tried  by  a  jury,  and  it  was  held  that  the 
ballots  cast  for  H.  F.  Yates  should  be  counted  for  Henry  F.  Yates, 
if  the  jury  believed  they  were  intended  for  him.2 

In  Wisconsin  in  1855,  there  was  a  contest  for  the  office  of  district 
attorney  of  Rock  county.  Carpenter,  the  relator,  claimed  the  office ; 
Ely  had  the  certificate  and  had  qualified  under  the  law.  The  jury 
found  specially  that  there  was  given  at  said  election,  not  including 
the  vote  in  dispute  in  Magnolia,  or  the  votes  given  in  the  town  of 
Turtle :  "  For  George  B.  Ely,  1,098 ;  George  B.  Ela,  8 ;  Ely  Ely,  1 ; 
Ely,  3 ;  Mathew  H.  Carpenter,  1,081 ;  D.  M.  Carpenter,  4 ;  M.  D.  Car- 
penter, 2 ;  M.  F.  Carpenter,  1 ;  Carpenter,  1 ;  S.  J.  Todd,  676.  The 
relator  claimed  that  all  the  votes  cast  for  Carpenter,  with  the  dif- 
ferent initials,  were  intended  for  him,  and  Ely,  the  respondent,  claimed 
that  the  eight  votes  cast  for  George  B.  Ela,  being  idem  sonans  with 
his  name,  should  be  counted  for  him,  as  they  were  so  intended,  and 
the  decision  of  the  jury  was  affirmed.3 

In  a  contested  election  case  in  Michigan. 

§  132.  It  was  held  that  evidence  of  the  intention  of  persons  voting 
at  an  election  was  not  admissible  ;  that  such  intention  was  to  be  de- 
termined by  the  ballot  itself ;  thus  it  was  not  competent  to  show  by 
parol  evidence  that  a  ballot  cast  for  H.  J.  Higgins  was  intended  for 
Henry  F.  Higgins.4 

Application  of  the  rule — idem  sonans. 

§  133.  In  the  application  of  the  doctrine  of  idem  sonans,  the  rule 
is  that  if  the  words  may  be  sounded  alike  without  doing  violence  to 
the  power  of  the  letters  found  in  the  variant  orthography,  then  the 
words  are  idem  sonans  and  the  variance  is  immaterial.4  In  the  en- 

1  Gumm  v.  Hubbard,  97  Mo.  811.  People  v.  Higgins,  8  Mich.  233 

•  People  v.  Ferguson,  8  Cow.  102.  Ward  v.  State,  28  Ala.  53. 

»  Carpenter  v.  Ely,  4  Wis.  420. 


—  IDEM  SONANS.  81 

termg  of  judgments  on  the  court  dockets  and  judgment-rolls,  and 
the  names  in  the  indexes,  certainty  is  required,  and  identity,  to  avoid 
injury  and  great  injustice  to  persons  having  occasion  to  examine  or 
being  interested  in  judgments  and  their  liens  on  property,  and  es- 
pecially should  great  care  be  taken  to  enter  the  names  of  judgment 
debtors  correctly,  while  it  may  not,  in  all  cases,  be  fatal  to  misspell 
the  name,  if  it  is  so  spelled  as  to  bring  it  within  the  rule  of  idem 
sonans.1  In  Texas  it  was  held  that  in  a  murder  trial,  where  the  jury 
found  the  defendant  guilty  of  murder  in  the  "  fist "  degree,  it  was 
insufficient  and  should  be  set  aside  as  void.  In  these  cases  the  rule 
of  idem  sonans  did  not  apply  —  though  it  is  held  to  apply  as  well 
in  trials  for  murder  as  in  other  cases.2  And  though  the  spelling  be 
bad  and  the  grammar  incorrect,  yet,  if  the  words  used  are  idem 
somans,  the  verdict  will  be  valid.  The  question  has  been  before  the 
court  in  Texas  quite  frequently,  and  this  rule  has  been  generally  ap- 
plied.3 As  for  instance,  where  the  jury  found  the  prisoner  "  gilty  " 
instead  of  "guilty"  and  fixed  his  penalty  at  a  "turm"  instead  of 
"  term  "of  years,  or  "  deth  "  instead  of  "  death."4  As  to  names,  the 
law,  it  is  said,  does  not  recognize  a  middle  name  as  any  part  of  the 
name  of  a  person,  regarding  every  person  as  having  two  names,  and 
where  there  is  a  middle  name  or  letter  and  it  is  omitted,  or  if  a  mis- 
take occur  in  it,  the  courts  will  not  regard  it,  but  will  treat  such 
middle  name  as  a  surplusage.5 

Name  in  indictment  —  variance  —  when  immaterial. 

§  134.  In  a  Texas  case  for  larceny  the  indictment  charged  that 
Amaranti  Musquez,  Marcial  Tigirina  and  Ignation  Waldonado  did 
steal,  etc.,  from  the  possession  of  Manual  Barragon,  six  head  of 
work  oxen  of  the  value  of  $105,  the  property  of  the  said  Manual 
Barragon,  etc. 

The  indictment  first  charges  the  name  of  the   defendant  to  be 

1  Walker  v.  State,  13  Tex.  App.  618.        5  State  v.  Martin,  10  Mo.  391;  Miller 

8  Haney  v.  State,  2  Tex.   App.    504;  v.    People,   39  111  457;  Edmundson   v. 

Williams  v.  State,  5  id.    226;  State  v.  State,    17   Ala.   (N.  S.)  179;    Isaacs  v. 

Smith,  33  La.    Ann.    1414;  Huffman  v.  Wiley,  12  Vt.  674;  Keene  v.  Meade,   3 

Com.,  6  Rand.  (Va.)  685;  Taylor  v.  State,  Pet.  7;  State  v.   Manning,  14  Tex.  402; 

5  Tex.  App.  569;  Walker  v.  State,    13  Franklin  v.    Talmadge,    5   Johns.    84 ; 

id.  618.  Wood  v.  Fletcher,  3  N.  H.  61;  Erskine 

3  McMillan  v.  State,  7  Tex.  App.  100;  v.  Davis,  25  111.  251;   Speerv.  Craig,  22 
Koontz  v.  State,  41  Tex.  570;  Taylor  v.  id.  432;  King  v.  Hutchins,  8  Fost.  561; 
State,   5    Tex.    App.    569  ;    Walker  v.  Bletch  v.  Johnson,  40  111.  116;  Allen  v. 
State,  13  id.  618.  Taylor,  26  Vt.  599;  Dilts  v.  Kinney,  3 

4  Krebs  v.  State,   3  Tex.  App.    348;  Green  (N.  J.),  130. 
Koontz  v.  State,  41  Tex.  570. 

11 


82  THE  LAW  OF  IDENTIFICATION. 

"  Arnaranti,"  and  second  to  be  "  Aramanti,"  the  first  being  correct, 
it  was  held  that  the  latter  might  be  rejected  as  surplusage.1  The 
court  of  Wisconsin  had  announced  the  same  doctrine  in  an  indict- 
ment for  the  murder  of  one  Sylvester  Giddings,  in  1863.  The  de- 
fendant was  convicted  of  manslaughter,  and  the  case  went  up  to  the 
Supreme  Court  on  exception  taken  by  the  defendant  on  the  trial  and 
after  verdict.2* 

Murder  —  name  of  deceased  —  idem  sonans  —  rule. 

135.  In  an  Alabama  case  a  slave  was  indicted  for  the  murder 
of  Louis  Boudet  (or  Bored et),  as  the  court  decided,  on  inspection,  it 
might  be;  it  was  held  that  where  the  indictment  alleged  the  name 
of  the  deceased  to  be  Louis  Boudet  or  Boredet,  while  his  real  name 
was  Burdet,  and  sometimes  pronounced  as  if  it  were  spelled 
Bouredet,  and  the  Circuit  Court  thereupon  charged  the  jury,  "  that 
if  the  real  name  were  the  same  in  sound  as  if  written  Boudet  or 
JSoredet,  or  so  near  the  same  that  the  difference  would  be  but  slight, 
or  scarcely  perceptible,  and  he  would  have  been  readily  known  by 
his  name  being  pronounced  as  if  written  Boudet  or  Boredet,  then 
the  variance  would  not  avail  the  defendant."  The  Supreme  Court 
said  :  "  The  ruling  of  the  court  in  reference  to  the  name  of  the  de- 
ceased was  substantially  correct.  We  understand  the  Circuit  Court 
to  have  said,  in  substance,  that  if  the  variance  in  the  name  be  so 
slight  as  scarcely  to  be  perceptible,  and  the  deceased  would  have 

1  Musquez    v.    State,    41     Tex.    226        2  State  v.  Lincoln,  17  Wis.  579. 
(1874). 

*In  the  case  of  State  v.  Lincoln,  17  Wis.  579,  supra,  the  court  said:  "This  indictment  was 
for  murder,  and  in  it  the  name  of  the  deceased  is  spelled  in  three  different  ways.  In  one  place  he 
is  called  "Sylvester  Giddings,"  in  another  " Sylvester  Gidings"  and  in  another  "Sylvester 
Gidines."  It  was  urged  that  the  judgment  should  be  arrested  for  this  reason.  But  we  are  in- 
clined to  think  that,  with  the  three  forms  of  spelling,  the  names  are  to  be  regarded  as  idem 
sonans,  within  the  rule  upon  that  question.  But  there  was  proof  introduced  to  the  effect  that 
the  name  of  the  deceased  was  Jack  Giddings  and  not  Sylvester,  and  upon  this  the  prisoner  asked 
the  court  to  instruct  the  jury  ' '  that  they  must  find,  from  the  evidence,  that  the  name  of  the  per- 
son killed  was  Sylvester  Giddings  as  charged  in  the  indictment,  or  that  he  was  generally  known 
by  that  name,  and  if  they  fail  to  find  these  facts,  they  must  acquit  the  defendant,"  and  also 
"  that  if  the  jury  find,  from  the  evidence,  that  the  name  of  the  person  killed  was  Festus  Giddings 
or  Jack  Giddings,  and  that  he  was  generally  known  by  either  of  these  names  and  not  by  the 
name  of  Sylvester  Giddings,  they  must  find  the  defendant  not  guilty."  These  instructions  the 
court  refused  fully  to  give,  but  did  instruct  "that  the  name  or  the  deceased  must  be  proved 
as  laid  in  the  indictment,  or  the  variance  will  be  fatal;  but  that  if  they  found,  from  the  evidence, 
that  the  deceased  was  known  by  several  different  Christian  names,  and  that  he  was  described  by 
one  of  these  names  in  the  indictment,  and  there  was  proof  of  the  name  as  laid,  it  was  sufficient, 
though  there  was  also  proof  of  the  other  name  by  which  he  was  also  known."  We  think  this  in- 
struction, considered  with  reference  to  the  proof  before  the  jury,  erroneous.  There  was  no  wit- 
ness for  the  prosecution  who  had  testified  either  that  the  name  of  the  deceased  was  Sylvester 
Giddinzs,  or  that  he  was  generally  known  by  that  name.  Hall,  the  first  witness,  testified  that 
the  deceased  worked  for  him  three  years,  that  he  was  generally  known  by  the  name  of  Jack 
Giddings,  but  that  he  had  seen  him  write  his  name  several  times,  and  he  "  thought  "  he  wrote 
it  "  Sylvester  GiddiDgs."  Crawford,  also  a  witness  for  the  prosecution,  testified  that  he  knew 
"Jack  Oiddings  "  ana  never  knew  him  by  any  other  name.  Rockway,  for  the  prosecution,  tes- 
tified that  the  deceased  was  generally  known  by  the  name  of  Jack  Giddings,  nut  that  eleven 
or  twelve  years  before,  he  had  received  an  order  from  the  deceased,  which  he  thought  was- 
gigned  "Sylvester  Oiddings."  Others  swore  his  real  name  was  "Festus."  — (Judgment re 
versed.) 


NAME  —  IDEM  SONANS.  83 

been  readily  known  by  the  name  thus  called,  then  such  variance  was 
immaterial.  In  the  case  of  Ahitbol  v.  jBeniditto,  the  court  ruled 
Benedetto  was  idem  sonans  with  Beniditto.1 

Larceny  —  assault  —  name  of  injured  person. 

§  136.  The  same  court,  in  a  case  of  assault,  held  that  a  variance 
between  the  averment  in  the  indictment  and  the  proof,  as  to  the 
name  of  the  person  assaulted,  was  immaterial,  where  the  names  may 
be  sounded  alike  without  doing  violence  to  the  letters  found  in  the 
variant  orthography,  as  in  the  names  Chambless  and  Chambles? 
When  the  name  of  the  owner  of  stolen  goods  was  written  in  an  in- 
dictment as  "  Fraude  "  while  the  proper  spelling  of  it  was  "  Freude," 
and  expert  evidence  showed  a  wide  difference  in  the  sound  and  in  pro- 
nouncing the  two  words,  the  question  of  variance  or  no  variance  in 
the  names  should  be  submitted  to  the  jury,  with  proper  instructions 
explanatory  of  the  rules  of  idem  sonans.  When  this  question  arises, 
it  is  said,  the  practice  should  be  analogous  to  the  practice  in  case 
of  plea  of  misnomer  by  the  prisoner  —  the  fact  should  be  submitted  to 
the  jury,  and  it  is  competent  to  show  that  the  names  are  entirely 
dissimilar  in  sound,  or  that  the  prisoner  is  as  well  known  by  the 
name  used  in  the  indictment  as  by  any  other.3 

Larceny  —  name  of  owner  —  jeopardy  —  rule  in  Texas. 

§  137.  One  Parchman  was  indicted  in  Texas  and  convicted  for 
stealing  a  gelding,  the  property  of  one  H.  Franks,  to  which  he 
pleaded  guilty  ;  a  jury  were  impaneled,  and  the  testimony  of  the 
State's  witness,  H.  Frank,  went  to  the  jury,  when  it  was  discovered, 
from  his  testimony,  that  his  name  was  H.  Frank,  and  the  animal 
stolen  was  charged  in  the  indictment  to  be  the  property  of  H.  Franks ; 
a  nolle  prosequi  was  ordered  over  the  objection  of  the  defendant's 
counsel.  The  grand  jury  found  a  new  bill  of  indictment  on  the 
same  day,  charging  him  with  the  theft  of  the  gelding  from  H.  Frank. 
He  was  convicted  on  the  second  indictment.  He  filed  his  plea  of 
jeopardy  and  supported  it  by  the  former  record,  under  the  Con- 
stitution. The  court  said  :  "  We  believe,  after  a  careful  examination 
of  the  authorities,  that  if  the  court  had  no  jurisdiction  of  the  cause;  or 

1  Aaron  v.  State,  37  Ala.  106.  Citing  v.    Walker,    10     id.    370;    2    Russell 

Ahitbol  v.   Beniditto,     2    Taunt.     401;  Crimes,   715;    Ahitbol   v.    Beniditto,   2 

Ward  v.  State,  28  Ala.  60;  Doe,  ex  dem.,  Taunt.  401. 
v.  Miller,  1  B.  &  Aid.  699.  3  Weitzel    v.    State,    28    Tex.    App. 

«  Ward  v.  State,  28  Ala.  60;  Gresham  523. 


84  THE  LAW  OF  IDENTIFICATION. 

if  the  indictment  were  so  defective  that  no  valid  judgment  could  be 
rendered  upon  it;  or  if,  by  any  regular  necessity,  the  jury  were  dis- 
charged without  a  verdict,  which  might  happen  from  the  sickness  or 
death  of  the  judge  of  the  court,  or  the  inability  of  the  jury  to  agree 
upon  a  verdict  after  sufficient  deliberation  and  effort  ;  or  if  the 
term  of  the  court  as  fixed  by  law  come  to  an  end  before  the  trial  is 
finished,  or  the  jury  be  discharged  with  the  consent  of  the  defendant, 
expressed  or  implied ;  or  if,  after  verdict  against  the  accused,  it  has 
been  set  aside  on  his  motion  for  a  new  trial,  or  in  arrest  of  judgment, — 
the  accused  may,  in  all  such  cases,  again  be  put  on  trial  for  the  same 
facts  charged  against  him,  and  the  proceedings  had  will  constitute  no 
protection.  But,  when  the  legal  bar  has  once  attached,  the  govern- 
ment cannot  avoid  it  by  varying  the  form  of  the  indictment.  If  the 
first  indictment  were  such  that  the  accused  could  have  been  convicted 
under  it  on  proof  of  the  facts  by  which  the  second  is  sought  to  be 
sustained,  then  the  jeopardy  which  attached  on  the  first  must  con- 
stitute a  protection  against  a  trial  on  the  second."1 

Retailing  —  name  of  the  vendee. 

§  138.  In  Indiana  one  Cleaveland  was  charged  by  information  with 
selling  intoxicating  liquor  to  one  George  "  Geessler  "  and  it  appeared 
on  the  trial  that  the  name  of  the  vendee  was  George  "  Geissler." 
The  defendant  asked,  and  the  court  refused  to  charge  the  jury  as 
follows :  "  If  the  information  charge  that  the  defendant  sold  the 
whisky  to  one  George  '  Geessler,'  and  the  proof  is  that  it  was  sold  to 
George  *  Geissler,'  whose  last  name  is  spelled  '  Geissler,'  and  pro- 
nounced '  Giseler,'  then  the  proof  does  not  support  the  charge,  and 
unless  the  prosecution  has  proven  that  the  vendee  is  known  as  well 
by  one  name  as  the  other,  the  defendant  must  be  acquitted."  But 
the  court  charged  as  follows:  "  'Geissler  '  and  '  Geessler'  are  near 
enough  alike  to  make  no  difference  in  this  case.  The  question  is, 
did  the  defendant  sell  the  liquor  to  the  prosecuting  witness  ?  "  this 
was  held  to  be  correct.2  It  was  held  in  Missouri,  and  perhaps 
very  properly,  that  the  rule  that  from  identity  of  name,  identity  of 
person  may  be  presumed,  cannot  be  extended  so  far  as  to  sustain  the 
inference  that  the  same  name  appearing  as  plaintiff  and  defendant  in 
an  action  represents  one  and  the  same  person.  But  an  order  of 

1  Parchman  v.  State,  2  Tex.  App.  228,  Stewart  v.  State,  4  Blackf .  171 ;  Moore 
237.  v.  Anderson,  8  Ind.  19;  James  v.  State, 

« Cleaveland    v.  State,   20    Ind.  444;    7  Blackf.  325. 


NAME  —  IDEM  SONANS.  85 

publication  intended  to  notify  Benjamin  F.  Strimple  is  valid  if 
directed  to  "  Frank  Strimple,"  that  being  the  Christian  and  sur- 
name by  which  he  is  usually  known.1  But  it  was  held  that,  in  an 
action  against  a  non-resident,  the  order  of  publication  against  the  de- 
fendant gave  his  name  as  Q.  R.  Noland  instead  of  Quinces  R. 
Noland,  and  there  was  no  personal  appearance  under  the  order  of 
publication,  the  court  acquired  no  jurisdiction.2  Names  are 
idem  sonans  when  the  attentive  ear  finds  difficulty  in  distinguishing 
them  when  pronounced,  or  common  and  long-continued  usage  has, 
by  corruption  or  abbreviation,  made  them  identical  in  pronunciation. 
"  Wheler  "  and  4;  "Whelen  "  are  not  idem  sonans?  nor  are  "  Miller  " 
and  "Milieu."4 

Growing  importance  of  idem  sonans  rule. 

§  1 39.  There  is  a  rule  of  growing  importance  by  which  courts, 
for  many  years,  have  evinced,  by  their  decisions,  a  disposition  to  re- 
cede from  the  fading  adherence  to  common-law  technicalities,  and 
hold  rather  to  substance  than  mere  form.  Modern  decisions  con- 
form to  the  rule  that  a  variance,  to  be  material,  must  be  such  as  to 
mislead  the  opposite  party  to  his  prejudice,  and  hence  the  doctrine 
of  idem  sonans  has  been  much  enlarged  by  modern  decisions,  to 
conform  to  the  above  salutary  rule.5  The  law  does  not  treat  every 
slight  variance,  if  trivial,  such  as  the  omission  of  a  letter  in  the  name, 
as  fatal.  The  variance  should  be  a  substantial  and  material  one  to 
be  fatal.6 

1  Wilson  v.   Benedict,    90  Mo.   208;  4  Chamberlain    v.   Blodgett,    96  Mo. 
Steinmann  v.  Strimple,  29  Mo.  App.478.  482. 

2  Skelton  v.  Sackett,  91  Mo.  377.  6  Trimble  v.  State,  4  Blackf.  435,  437. 

3  Whelen  v.  Weaver,  93  Mo.  430.  6  Stevens  v.  Stebbins,  3  Scam.  25. 


CHAPTER  IY. 

IDENTITY  OP  PRISONER. 

SEC.  SEC. 

140.  Identity  of  prisoner  —  second  con-     149.  Same  —  case  of  assassination  —  rule 

viction  —  robbery.  in  Texas. 

141 .  Same  —  housebreaking.  150.  Acts  —  weapons  —  motives  —  sur- 

142.  Assassination  —  tracks  —  gunshot.  roundings. 

143.  Footprints — identity  —  ruleinCal-  151.  Same  —  blood-stains  —  rule  in  Mis- 

ifornia.  souri. 

144.  Tracks  in  the  mud  —  identification.  152.  Recognizance — identity  of  prisoner. 

145.  Tracks  —  jurors  examining  them.  153.   Indictment  —  variance  —  name. 

146.  Inspection  of  clothing  of  deceased.  154.  Weapons  —  how  to  be  identified. 

147.  Same  —  clothing  and  rug  identified.  155.  Weapons  identified  by  comparison 

148.  Same  —  coat  and  pants  —  rule  in  —  anarchists. 

Texas.  156.  Clothing  —  burning  —  bloody. 

Identity  of  prisoner  —  second  conviction  —  robbery. 

§  140.  In  an  English  case  decided  in  1858,  the  prisoners  having 
been  indicted  for  robbery  at  Leeds,  the  jury  found  a  verdict  of  guilty ; 
and  the  indictment  also  charging  that  Levy  (one  of  the  prisoners)  had 
been  previously  convicted  of  felony,  the  court  proceeded  to  try  that 
charge.  It  appeared  that  a  person  named  William  Levy  had  been 
summarily  convicted  at  Leeds,  under  the  provisions  of  the  statute 
18  and  19  Viet.,  chap.  126,  and  that  no  witness  could  be  produced 
who  was  present  when  that  person  was  convicted.  H.  West  (Alfred 
Austin  with  him),  for  the  prosecution,  proposed  to  prove  the  identity 
of  the  prisoner  with  the  person  so  convicted,  by  putting  in  the  con- 
viction before  the  magistrates  of  the  borough  of  Leeds  under  the 
statute,  and  by  calling  the  governor  of  the  Leeds  Borough  Gaol, 
who  produced  a  warrant  of  commitment  signed  by  the  same  magis- 
trates, and  otherwise  agreeing  in  every  particular  with  the  convic- 
tion, under  which  he  stated  that  he  received  the  prisoner,  who  had 
just  been  convicted,  into  his  custody,  and  that  he  underwent  his  sen- 
tence in  pursuance  of  the  terms  of  the  warrant.  BYLES,  J.,  said  : 
"  That  is  evidence  on  which  the  jury  may  fairly  convict  the  prisoner 
of  having  committed  this  robbery,  after  having  been  previously  con- 
victed of  felony."1 

1  Reg.  v.  Levy,  8  Cox,  78. 


IDENTITY  OF  PRISONER.  87 

Same  —  housebreaking. 

§  141.  A  case  similar  to  the  above  had  been  tried  for  house- 
breaking  in  1840.  The  indictment,  besides  the  ordinary  count  for 
housebreaking,  charged  that  the  prisoner  had  been  previously  con- 
victed of  felony  at  the  Newbury  Borough  Sessions  in  October.  To 
prove  the  previous  conviction,  a  certificate  of  Mr.  Yines,  the  clerk 
of  the  peace  of  the  borough,  was  put  in,  certifying  that  the  prisoner 
had  been  convicted  of  stealing  cotton  print,  and  had  been  sentenced 
to  imprisonment  for  four  months.  To  prove  the  identity  of  the  pris- 
oner Mr.  Hackett,  the  governor  of  Reading  Gaol,  was  called ;  he 
said :  "  The  prisoner  was  in  my  custody  before  the  Newbury  Bor- 
ough Sessions,  in  October,  1837 ;  I  sent  him  to  Newbury  at  that 
time ;  I  was  not  at  the  trial,  but  I  received  him  back  with  an  order 
from  the  Newbury  Sessions ;  and  he  remained  in  my  custody  four 
months  under  that  sentence."  He  was  transported  for  life.2 

Assassination  —  tracks  —  gunshot. 

§  142.  In  a  Texas  case  in  1880,  one  Bouldin  was  indicted  and 
convicted  for  the  alleged  murder  of  one  Jerry  Lyons  on  September 
10,  1879,  by  shooting  with  a  gun.  The  deceased  was  a  laborer  on  a 

railroad  track,  and  while  at  work  was  shot  from  a  thicket  near  the 
j 

track.  The  gun  was  heard  by  two  or  three  other  men  working  near 
by,  but  they  saw  no  one  in  the  direction  of  the  report.  The  defend- 
ant was  a  negro,  who  lived  about  a  mile  and  a  half  from  the  place  of 
the  assassination.  Seven  or  eight  months  previous,  he  had,  as  he 
stated,  caught  the  deceased  in  adulterous  intercourse  with  his  wife, 
and  consulted  his  former  owner  about  his  right  to  kill  him ;  but 
being  advised  not  to  do  so,  he  said  he  would  acquiesce  and  quit  his 
wife.  The  deceased  was  killed  with  a  single  small  ball,  and  the  ac- 
cused had  been  seen  that  morning  hunting  with  a  small  rifle.  Men 
in  search  of  the  assassin  found  tracks  in  and  near  the  thicket  where 
the  shot  was  fired,  and  horse-tracks  leading  in  the  direction  of  de- 
fendant's house.  They  called  at  his  house  and  he  came  out  without 
his  shoes.  They  arrested  him  and  let  him  put  on  his  shoes,  and  took 
him  where  they  found  the  tracks,  one  of  which  was  in  a  pile  of  ashes, 
and  was  the  impress  of  the  left  shoe,  slightly  run  down.  They  found 
the  shoe  to  fit  the  tracks.  He  said  the  gun  that  he  had  been  hunt- 
ing with  was  not  his,  but  was  at  his  house.  They  got  it  and  found 
it  had  been  recently  discharged.  These  were  the  facts  for  the  State. 
1  Reg.  v.  Crofts,  9  C.  &  P.  219. 


88  THE  LAW  OF  IDENTIFICATION. 

He  proved  a  good  character,  and  an  alibi,  if  the  witnesses  deposed 
truthfully.     The  new  trial  was  granted.1* 

Footprints  — identity  —  rule  in  California. 

§  143.  A  case  decided  in  California,  in  1886,  was  that  of  McCurdy 
for  the  murder  of  one  Dreher,  in  1884.  The  defendant  was  found 
guilty,  but  the  cause  was  not  reversed  on  the  grounds  of  newly -dis- 
covered evidence,  yet  other  important  questions  were  considered  and 
decided.  On  the  trial  of  the  case,  to  prove  the  identity  of  the  ac- 
cused, evidence  of  the  measurement  of  certain  footprints,  claimed  to 
be  those  of  the  defendant,  was  admitted.  They  were  found  in  the 
vicinity  of  the  place  of  the  homicide,  and  corresponded  with  the 
footprints  of  the  defendant.  The  measurements  were  made  respect- 
ively about  five  days  and  two  weeks  after  the  date  of  the  homicide. 
This  was  held  to  be  proper. 

At  the  trial  of  this  case,  and  after  the  closing  of  the  testimony 
and  the  argument  of  counsel  and  instructions  by  the  court,  the 
jurors,  at  their  own  request,  inspected  certain  articles  of  apparel  re- 
ferred to  in  the  evidence,  and  worn  by  the  defendant  and  the  prose- 
cuting witness  on  the  day  of  the  alleged  homicide.  There  being  no 
objection  made  by  either  party  to  the  action,  it  was  presumed  that 
such  inspection  was  by  the  consent  of  all  the  parties,  and  was  not 
1  Bouldin  v.  State,  8  Tex.  App.  332. 

*  In  thiscase  (Bouldin  v.  State,  supra)  WHITE,  P.  J.,  said:  "  The  sixth  division  of  the  charge  of 
the  court  to  the  jury  is  almost,  if  not  literally,  a  copy  of  the  charge  of  the  court  with  regard  to 
the  relative  weight,  character  and  effect  of  circumstantial  and  positive  proof,  when  compared 
together,  which  was  delivered  by  the  same  presiding  judge  to  the  jury  in  the  case  of  Monroe 
Harrison  v.  The  State,  decided  at  the  present  term,  ante,  p.  183.  In  that  case  the  charge  was 
dissected  and  its  inherent  defects  and  errors  were  fully  pointed  out,  both  in  so  far  as  it  was  upon 
the  weight  of  evidence  and  in  so  far  as  it  was  incorrect  as  an  attempted  annunciation  of  the 
principles  of  law  applicable  to  those  two  branches  or  classes  of  evidence.  It  is  only  necessary, 
on  this  branch  of  the  case,  to  refer  for  its  disposition  to  the  opinion  of  Judge  CLARK  in  Harrison's 
case.  It  was  error  for  the  court  to  permit  the  jury  to  take  with  them  into  their  room,  when 
they  retired  to  consider  of  their  findings,  the  rifle  gun  and  balls  which  had  been  exhibited  and 
testifled  about  by  the  witnesses."  As  was  said  by  the  Supreme  Court  in  the  case  of  Smith  v.  The 
State,  42  Tex.  444:  "If  by  this  means  they  (the  jury)  or  either  of  them  did  obtain  a  personal 
knowledge  of  a  material  fact  in  the  cause  before  finding  their  verdict,  and  it  was  considered  by 
them  in  finding  their  verdict,  than  they  acted  upon  a  fact  known  to  themselves,  not  developed 
publicly  on  the  trial  as  to  how  they  understood  it,  concerning  which  defendant  has  had  no  op- 
portunity to  cross-examine  them  as  witnesses,  and  upon  which,  being  unknown,  the  defendant  or 
his  counsel  have  not  been  heard,  and  of  which  the  judge  trying  the  cause  had  no  information, 
either  on  the  trial,  in  giving  his  charges,  or  on  the  motion  for  ft  new  trial. "  We  are  further  of 
opinion  that  the  court  erred,  as  shown  by  the  third  bill  of  exceptions,  in  not  permitting  defendant 
to  prove,  if  he  could,  his  willingness  to  try  his  shoe  in  the  footprints  found  upon  the  ground, 
and  supposed  to  have  been  made  by  the  assrvssin,  and  also  that  he  requested  the  parties  having 
him  under  arrest  to  measure  his  horse's  foot,  and  applv  the  measure  to  the  horse-tracks  sup- 
posed to  have  been  made  by  the  animal  ridden  by  the  assassin  to  and  from  the  place  of  1 
The  evidence  being  wholly  circumstantial,  every 'fact  and  circumstance  calculated  to  Illuminate 
the  transaction  should  have  been  permitted  to 'go  to  and  he  weighed  by  the  jury.  There  is 
telling  what  effect  the  fact  that  defendant  was  willing  to  subject  himself  and  horse  to 
of  actual  mpasiirpment  with  the  physical  facts  appearing  from  the  tracks  left  upon  the  ground 
would  have  had  upon  the  jury  passtner  upon  a  case  wholly  of  circumstantial  evidence.  If  it  were 
much  or  little,  defendant  was  nevertheless  entitled  to  have  the  jurv  to  know  by  the  evidence, 
that  when  he  was  first  brought  to  face  the  tracks  of  the  murderer  he  did  not  shun  the  contact 
or  comparison  with  them,  but,  on  the  contrary,  was  anxious  and  insisted  that  the  best  tests  that 
could  havt>  been  made  should  then  and  there  be  made  by  those  investigating  the  matter  and 
holding  him  in  custody  as  the  perpetrator  of  the  deed." 


IDENTITY  OF  PRISONER.  89" 

error.  The  court  said  :  "  The  testimony  as  to  the  guilt  of  defendant 
was  conflicting  to  the  last  degree.  Accepting  the  statements  of  Fred 
Dreher,  a  brother  of  deceased,  as  true,  there  can  be  no  reason- 
able doubt  of  the  guilt  of  the  defendant.  If,  on  the  other  hand,  the 
testimony  of  the  defendant  is  to  be  credited,  a  well-grounded  appre. 
hension  is  raised  that  Fred  Dreher  himself,  and  not  the  defendant, 
was  the  guilty  party.  The  situation  of  the  parties,  the  surrounding 
circumstances,  the  incentives  to  the  crime,  and  all  the  probabilities, 
were  questions  peculiarly  within  the  province  of  the  jury  to  deter- 
mine. There  being  evidence  sufficient  to  support  the  verdict,  we 
are  not  at  liberty,  under  the  well-established  rules  of  this  court,  to 
interfere  with  such  verdict  upon  the  ground  that  it  is  contrary  to 
the  evidence."1  As  a  matter  of  evidence  to  prove  identity,  the 
measurement  of  footprints  two  weeks  after  the  time  of  the  al- 
leged homicide,  is  somewhat  remote,  and  carries  the  rule  about  as 
far  as  the  rule  of  evidence  on  the  subject  will  permit. 

Tracks  in  the  mud  —  identification. 

§  144.  A  singular  proceeding  occurred  in  a  criminal  court  in 
Tennessee  in  1875.  The  prisoner,  Stokes,  was  indicted  for  the 
murder  of  Mrs.  Housen,  tried  and  convicted  of  murder  in  the  second 
degree,  and  sentenced  to  the  penitentiary  for  twenty  years.  The 
deceased  was  taken  from  her  house  at  night  and  hung  to  what  the 
witnesses  termed  a  "  hog-pole."  The  track  of  a  bare  foot  was  found 
in  the  mud,  near  the  place  where  she  was  hung,  and  the  inference, 
from  all  the  surrounding  circumstances,  was,  that  the  person  who 
made  the  track  was  one  of  the  parties  engaged  in  the  murder.  Upon 
the  trial  of  the  cause,  the  prosecution,  for  the  State,  brought  in  a  pan 
of  mud  and  placed  it  immediately  in  front  of  the  jury,  and  then 
asked  the  witness  if  the  mud  in  the  pan  was  about  as  soft  as  the  mud 
in  the  branch  where  he  saw  the  track.  Witness  said  it  was.  (To  all 
of  which  defendant  objected,  and  the  same  was  overruled.)  The 
attorney-general  then  called  upon  the  defendant  to  put  his  foot  in 
the  mud.  Upon  objection,  the  court  told  the  defendant  he  could 
put  his  foot  in  the  mud  if  he  wanted  to,  but  he  would  not  force  him 
to  do  so.  Subsequently  another  witness  was  asked  if  he  saw  the 
pan  of  mud  setting  there  before  the  jury.  He  said  he  did.  And  he 
was  asked  if  he  saw  any  track  in  it.  He  said  he  saw  none.  (To  all 
of  which  the  defendant  objected.)  Here  the  attorney-general  again 

1  People  v.  McCurdy,  68  Cal.  576. 
12 


90  THE  LAW  OF  IDENTIFICATION. 

called  upon  the  defendant  to  put  his  foot  in  the  mud.  Because  of  this 
action  of  the  attorney-general,  and  the  assent  of  the  court  thereto, 
the  cause  was  reversed.  The  court  said :  "  In  the  presence  of  the 
jury  the  prisoner  is  asked  to  make  evidence  against  himself.  The 
court  should  not  have  permitted  the  pan  of  mud  to  have  been 
brought  before  the  jury,  and  the  defendant  asked  to  put  his  foot  in 
it.  We  are  satisfied  the  jury  was  improperly  influenced  thereby. 
It  is  no  sufficient  answer  that  the  judge  afterward  told  the  jury  that 
the  refusal  to  put  his  foot  in  the  mud  was  not  to  be  taken  as  evidence 
against  him.  The  bringing  in  of  the  pan  of  mud  and  the  request  of 
the  attorney-general  was  improper  and  should  not  have  been  per- 
mitted by  the  court.  "We  greatly  deprecate  the  practice  into  which 
some  circuit  judges  have  fallen,  in  permitting  incompetent  and  ille- 
gal testimony  to  be  placed  before  the  jury,  and  afterward,  at  the 
close  of  the  case,  withdrawing  it  and  telling  the  jury  not  to  be  in- 
fluenced thereby."1 

Tracks — jurors  examining  them. 

§  145.  A  singular  and  important  case  was  decided  by  the  Supreme 
Court  of  Missouri  in  1878.  It  was  an  indictment  against  Sanders 
for  assault  with  intent  to  kill  one  Burgoon,  who  lived  about  three 
miles  from  Carthage  in  Jasper  county,  and  was  in  his  bed  asleep 
between  ten  and  eleven  o'clock  at  night.  That  the  assault  was 
cowardly  and  with  murderous  intent  was  not  questioned.  The  only 
question  was  as  to  the  identity  of  the  prisoner  with  the  perpetrator 
of  the  crime.  The  night  was  dark,  and  the  evidence  was  mainly  cir- 
cumstantial and  strongly  pointed  to  defendant ;  testimony  also  equally 
strong  and  conflicting,  but  not  implicating  others,  was  given,  making 
altogether  a  case  peculiarly  proper  for  the  jury.  And  the  question  be- 
fore the  Supreme  Court  was  the  adnaissibility  of  evidence,  and  the  mis- 
behavior of  the  jury.  The  court  said  :  "  The  evidence  in  regard  to  the 
criminal  intercourse  between  Mrs.  Burgoon  and  the  defendant  —  the 
quarrels  between  the  husband  and  wife,  and  the  lawsuit  between 
Burgoon  and  defendant,  all  growing  out  of  this  illegal  intimacy,  in 
our  opinion,  was  proper  for  the  consideration  of  the  jury,  and  sub- 
mitted to  them  under  proper  instructions.  *  The  principal 
objection  to  the  judgment  in  this  case  is  based  on  an  affidavit  in  re- 
gard to  the  conduct  of  the  jury.  This  affidavit  was  made  by  one 
Snyder,  who  was  not  a  juryman.  He  states  that,  on  the  morning 
1  Stokes  v.  State,  5  Baxt.  (Tenn.)  619. 


IDENTITY  OF  PRISONER.  91 

after  the  jury  retired,  lie  saw  several  persons,  whom  he  afterward 
ascertained  to  be  jurors,  experimenting  with  an  old  shoe,  which  had 
a  hole  freshly  cut  through  the  sole,  to  see  whether  a  track  made  by 
it  would  be  similar  to  the  track  testified  to  as  being  in  the  lane  run- 
ning west  from  Burgoon's  house ;  that  one  of  the  jurors  stepped  up 
to  him  and  said :  "  We  have  been  trying  tracks,  look  here,"  pointing 
to  tracks  made  in  the  dust  with  an  old  shoe ;  "  we  have  been  making 
tracks  with  an  old  shoe,"  pointing  to  a  shoe  then  in  the  possession 
of  the  juror ;  that  the  affiant  remarked  to  the  juror  (not  at  the  time 
knowing  he  was  a  juror)  that  the  shoe  shown  him  was  not  like  the 
sole  of  the  boot  referred  to  in  the  evidence ;  to  which  the  juror  re- 
plied :  "  It  would  make  a  track  any  how  ; "  referring,  as  affiant  sup- 
posed, to  the  boot  spoken  of  by  the  witnesses  on  the  trial.  An  affi- 
davit of  the  juryman  Leathers,  who  was  referred  to  in  the  above 
affidavit  by  the  by-stander,  was  then  read,  which  is  as  follows :  He 
was  one  of  the  jurymen  in  the  trial  of  Sanders ;  that  L.  P.  Cunning- 
ham, in  his  argument  after  the  close  of  the  evidence,  told  the  jury  to 
just  try  worn-out  boots,  and  see  for  themselves  whether  they  make 
imprints  in  dust  or  sand,  as  it  is  claimed  by  the  prosecution  that  boots 
worn  out,  like  boots  referred  to  in  evidence,  would  do,  and  told  the 
jury  they  had  a  right  to  make  the  experiment  for  themselves,  to 
satisfy  their  own  minds  on  the  point.  The  affiant  then  made  the  ex- 
periment and  was  seen  and  reported  by  Mr.  Snyder.  An  affidavit 
by  another  juryman  named  Jessup  is  found  in  the  record,  which 
states,  "  that  during  the  trial  of  the  above  cause,  W.  F.  Leathers, 
one  of  the  jurors,  told  him  he  had  taken  an  old  shoe  and  cut  a  hole 
in  the  outer  sole  and  tried  it  in  the  dust,  and  they  might  talk  to  him 
as  much  as  they  pleased  about  a  boot,  worn  as  the  one  testified  to  by 
the  witnesses,  riot  showing  the  size  and  shape  of  the  place  worn-out, 
but  he  knew  better  ;  that  he  had  tested  that  himself  as  aforesaid,  and 
he  knew  it  would  show  the  marks  of  the  place  worn  out.  What  was 
done  with  the  affidavit  was  not  stated.  It  is  well  settled  that  jurors 
are  not  allowed  to  impeach  their  own  verdict.  Disregarding  the 
affidavit  of  the  juror  Jessup,  which  is  clearly  inadmissible,  we  have 
still  before  us  the  fact  that  a  portion  of  the  jurors  experimented, 
with  a  view  to  ascertain  a  fact  testified  to  on  the  trial,  and  to  test  the 
credibility  of  the  witnesses  who  testified  in  regard  to  that  fact. 
That  such  experiments  by  a  portion  of  the  jury,  or  by  all  the  jury, 
without  leave  of  the  court,  are  improper,  is  incontrovertible.  In 


92  THE  LAW  OF  IDENTIFICATION. 

some  States  the  jury  are  allowed  by  the  court,  even  in  criminal  cases, 
but  under  charge  of  the  sheriff,  to  view  the  ground  where  the  offense 
is  charged  to  have  been  committed,  for  the  purpose  of  determining 
for  themselves,  as  to  the  credibility  of  the  witnesses  who  were  ex- 
amined in  the  case.  It  is  not  necessary  to  determine  in  this  case 
whether  our  courts  have  any  such  power.  There  has  been,  un- 
doubtedly, some  relaxation  of  the  rules  prevailing  anciently  in  regard 
to  juries,  but  I  have  not  found  any  case  where  the  jury,  after  the 
cause  was  submitted  to  them,  was  allowed  to  receive  evidence  which 
could  have  any  bearing  on  the  case.1 

Inspection  of  clothing  of  the  deceased. 

§  146.  The  jury  may,  under  the  statutes  of  many  of  our  States, 
view  the  premises,  but  this  could  not  be  done  or  permitted  at  com- 
mon law,  except  by  the  consent  of  the  parties.  In  the  trial  of  an 
indictment  for  murder  in  Indiana,  decided  by  the  Supreme  Court  in 
1884,  the  trial  court  permitted  the  clothing  worn  by  the  deceased 
at  the  time  of  the  renconter  which  resulted  in  his  death,  to  be  ex- 
hibited to  the  jury.  This  was  held  to  be  proper,  because  marks 
upon  clothing  may  afford  evidence  of  the  character  of  the  wounds  as 
well  as  the  manner  in  which  they  were  inflicted,  and  where  the  pockets 
were  cut  or  turned  wrong  side  out,  it  may  furnish  proof  of  motive 
prompting  the  killing.  The  court  said :  u  There  was  evidence 
showing  that  the  appellant  was  shot  in  the  right  hand,  and  the 
legitimate  inference  from  this  might  well  have  been  that  his  were  the 
fingers  that  made  the  bloody  marks  upon  the  pockets  of  the  de- 
ceased. It  would  have  been  an  unjustifiable  usurpation  for  the 
court  to  deny  the  triers  of  the  facts  the  right  to  make  legitimate 
inferences  from  the  clothing  placed  before  them  for  their  in- 
spection."2 

Same  —  clothing  and  rug  identified. 

§  147.  In  Texas,  on  a  trial  for  murder  in  1883,  alleged  to  have 
been  committed  by  shooting,  it  was  held  to  be  proper  to  allow  the 

1  State  v.  Sanders,  68  Mo.  202.     That  2  Story  v.  State,   99  Ind.  413.     Citing 

jurorw  are  not  allowed  to  impeach  their  BestPrin.  Ev.  (Am.  ed.)  198,  authorities 

own  verdict,  the  court  cites  State  v.  Cou-  in    note;    Burrill   Cir.    Ev.    261,    686; 

penhaver,  39  Mo.  430,  and  cases  there  Whart.  Cr.  Ev.  (9th   ed.),    §§  312,  767; 

cited;   State  v.   Alexander,  66  id.   148.  McDonel  v.   State,  90  Ind.    820;  Short 

Sometimes  under  charge  of  the  sheriff,  v.   State,  63  id.  376 ;  Beavers  v.  State, 

they  may  view  the  ground  where  the  58  id.  530. 
offense   is  alleged  to  have  been  com- 
mitted.     State  v.  Knapp,  45  N.  H.  148. 


IDENTITY  OF  PRISONER.  93 

prosecution,  over  objection  by  the  defense,  to  put  in  evidence  the 
clothing  worn  by  the  deceased  at  the  time  he  was  shot,  and  to  ex- 
hibit the  shot-holes  in  the  clothes.  It  was  not  a  valid  objection  to 
this  proof  that  the  clothes  could  not  be  "  sent  up  in  the  record." 
The  court  said :  "  As  shown  by  the  seventh  bill  of  exceptions,  the 
State  was  permitted  to  produce  and  identify  before  the  jury  the 
clothing  worn  and  the  buggy  rug  used  by  the  deceased  at  the  time 
he  was  shot  —  which  were  perforated  by  bullet-holes.  Objection 
was  made,  and  sustained  as  far  as  it  was  proposed  to  offer  the  articles 
of  clothing  and  rug  as  evidence  in  themselves,  but  was  overruled  in 
other  respects,  and  the  witness  was  permitted  to  identify  the  articles; 
to  state  that  they  were  the  clothing  and  rug  worn  and  used  by  the 
deceased  on  the  day  and  at  the  time  of  the  shooting."  This  was 
held  to  be  proper.1 

Same  —  coat  and  pants  —  rule  in  Texas. 

§  148.  In  the  trial  of  King  for  the  murder  of  Dr.  Harrington 
in  Texas,  decided  in  1882,  it  was  held  that,  when  the  position  of  the 
slayer  became  a  material  inquiry  in  the  case,  it  was  not  error  to  ad- 
mit in  evidence  the  garments  proved  to  have  been  worn  by  the  de- 
ceased at  the  time  of  the  shooting,  if  they  tended  to  show  the  posi- 
tion of  the  slayer.  And  where  the  defendant  objects  to  such 
evidence,  his  bill  of  exceptions  should  show  wherein  it  was  improper 
and  inadmissible.  On  this  point,  the  court  simply  remarked  that 
"  upon  the  trial  of  this  case,  the  State,  over  the  defendant' s  objec- 
tions, was  permitted  to  introduce  and  exhibit  to  the  jury  a  coat  and 
pair  of  pants  which  were  proved  to  have  been  on  the  person  of  the 
deceased  at  the  time  he  was  shot.  Testimony  of  this  character  is 
oftentimes  pertinent,  material  and  admissible.2 

Same  —  case  of  assassination  —  rule  in  Texas. 

§  149.  In  an  earlier  Texas  case  (in  1880),  which  depended  upon 
circumstantial  evidence,  it  was  held  to  be  competent  for  the  prose- 
cution to  show  by  evidence  that  the  deceased  had  considerable  money 
prior  to  his  removal  to  Texas,  where  he  was  assassinated,  though  such 
evidence  was  remote.  That  whether  for  the  purpose  of  identifying 
the  deceased,  or  for  other  purposes  tending  to  prove  the  case,  the 
clothing  found  on  the  body  of  the  deceased  was  competent  evidence 

1  Hart  v.  State,  15  Tex.  App.  202.  *  King  v.  State,  13  Tex.  App.  280. 


94  THE  LAW  OF  IDENTIFICATION. 

to  be  introduced  by  the  State  on  the  trial.  Early  was  indicted  and 
convicted  for  the  murder  of  one  Winters,  on  Feb.  24,  1873.  The 
prosecution  introduced  in  evidence  certain  clothing,  consisting  of  an 
overcoat,  coat,  pants,  vest,  hat,  etc.  The  court  said :  "  The  objec- 
tion to  this  evidence  was  that  the  clothes  were  not  proper  instru- 
ments of  evidence  and  could  not  be  made  a  part  of  the  record  and 
submitted  for  inspection  on  appeal.  *  *  *  We  are  not  specially 
advised  by  the  record  whether  this  evidence  was  introduced  for  the 
purpose  of  identifying  the  deceased  or  not ;  but  whether  for  this 
purpose,  or  for  any  other  purpose  tending  to  prove  the  case,  we  are 
of  opinion  that  the  State  was  entitled  to  it."1 

Acts  —  weapon  —  motives  —  surroundings. 

§  150.  It  was  held  to  be  competent,  on  the  trial  of  an  indictment 
for  murder,  for  the  State  to  put  in  evidence  acts  of  the  accused, 
antecedent  to  the  act  of  killing,  which,  either  in  themselves  or  in 
connection  with  other  circumstances,  tend  to  prove  motive  or  prepa- 
ration. Where  a  prisoner  was  charged  with  homicide  it  was  com- 
petent to  prove  all  the  circumstances  connected  with  the  body,  and 
the  state  of  the  body  of  the  deceased  when  it  was  found,  the  tracing 
of  stains,  marks,  or  impressions,  the  finding  of  instruments  of  vio- 
lence on  the  spot  or  elsewhere,  and  all  visible  vestigia  as  part  of  the 
transaction.  And  after  the  witness  had  described  such  articles  and 
they  appeared  to  have  been  connected  with  the  deceased,  or  used  in 
the  commission  of  the  crime  or  secretion  of  the  body,  it  is  compe- 
tent to  exhibit  such  articles  for  identification.  Hubby  was  indicted 
and  convicted  for  the  murder  of  Gardner  on  May  27,  1879,  and 
sentenced  to  death.  Among  other  things,  the  court  said  :  "  It  does 
not  appear,  by  positive  testimony,  that  the  clothing  found  was  the 
clothing  of  the  deceased ;  but  that  is  a  natural  if  not  a  necessary  in- 
ference, when  viewed  in  connection  with  the  fact  that  the  body, 
when  found,  was  almost  entirely  denuded.  The  form  in  which  the 
clothing  was  when  found  —  carefully  bundled  up,  and  concealed 
some  distance  from  the  body  —  is  not  without  some  significant  bear- 
ing ;  but  if  immaterial,  no  possible  prejudice  could  have  resulted  to 
appellant.  A  rope  or  some  similar  instrument  evidently  constituted 
an  important  factor  in  an  attempt  at  concealment  of  the  dead  body. 

1  Early  v.  State,  9  Tex.  App.  476.  Citing  Hubby  v.  State,  8  id.  597,  and 
cases  there  cited;  1  Stark.  Ev.  66. 


IDENTITY  OF  PKISONEB.  95 

The  evidence  establishes  most  convincingly  that,  after  the  assassina- 
tion had  been  accomplished,  the  person  of  the  deceased  was  stripped 
of  its  clothing,  a  rope  or  similar  appliance  was  fixed  about  the  neck, 
and  the  body  thus  dragged  for  six  miles  across  the  prairies,  studded 
with  musquite  bushes,  chaparral,  and  prickly-pear  thickets,  and 
finally  concealed  in  a  thicket  on  Little  Pond  creek.  When  found, 
the  neck  of  the  body,  as  stated  by  a  witness,  "  was  cut  in  deep  all 
around,  as  if  done  by  a  rope  around  it."  Certainly  the  finding  of  a 
rope  in  the  house  of  appellant,  after  his  arrest,  which,  from  the 
marks  and  indications  upon  it,  had  evidently  been  used  for  some 
similar  purpose,  was  a  fact  competent  to  go  to  the  jury ;  and  the 
fact  that  the  witness  produced  the  rope  and  described  it  to  the  jury 
does  not  render  the  proceeding  erroneous,  especially  as  no  ground  of 
objection  was  shown  or  urged  before  the  court.  The  exhibition  of 
the  articles  in  the  condition  in  which  they  were  found  was  more  sat- 
isfactory, in  connection  with  the  other  circumstances,  than  any  de- 
scription that  could  have  been  given  by  the  witnesses,  even  had  the 
articles  been  actually  offered  in  evidence.  As  said  by  Starkie : 
"  Upon  the  trial  of  a  prisoner  on  a  charge  of  homicide  or  burglary, 
all  circumstances  connected  with  the  state  of  the  body  found  or  house 
pillaged —  the  traces  by  stains,  marks  or  impressions,  the  finding  of 
instruments  of  violence,  or  property,  either  on  the  spot  or  elsewhere ; 
in  short,  all  visible  vestigia,  as  part  of  the  transaction,  are  admitted 
in  evidence  for  the  purpose  of  connecting  the  prisoner  with  the  act. 
Such  facts  and  circumstances  have  not  improperly  been  termed  in- 
animate witnesses."1 

Same  —  blood-stains  —  rule  in  Missouri. 

§  151.  On  the  trial  of  a  party  for  murder  in  Missouri  in  1885,  it 
was  held  that  it  was  not  error,  but  proper,  to  admit  in  evidence  and 
permit  the  jury  to  inspect  clothing  worn  by  the  accused  on  and  soon 
after  the  day  of  the  commission  of  the  crime  and  having  thereon 
blood-stains.  And  the  fact  that  such  clothing  could  not  be  filed  with 
the  bill  of  exceptions  was  no  reason  for  excluding  them,  the  de- 
scriptive evidence  being  sufficient  to  enable  the  court  to  pass  upon 
the  competency  of  the  evidence.  Stair  was  indicted  for  killing  Sew- 
ell,  and  jointly  with  him  one  Nannettie  for  aiding  and  abetting ;  they 

1  Hubby  v.  State,    8  Tex.  App.  597.  Ga.  113;  Campbell  v.  State,  23  Ala.  44; 

Citing    1    Stark.    Ev.    66;    People    v.  Com.  v.  Pope,  103  Mass.  440;  1  Whart. 

Gonzalez,  35  N.  Y.  49;  Gardiner  v.  Peo-  Ev.  346;  Whart.  Horn.,  §  647. 
pie.  6  Park.  Cr.  155;  Wynne  v.  State,  56 


96  THE  LAW  OF  IDENTIFICATION. 

were  both  convicted  and  sentenced  to  be  hanged.  The  evidence 
was  wholly  circumstantial ;  Sewell  was  advanced  in  years,  and  he  and 
his  son  were  camping  near  Nevada — had  with  them  two  wagons,  four 
horses,  some  plows,  bedding,  dishes,  etc.  Defendants  were,  for  the 
time,  living  in  Nevada,  and  Sewell  called  to  see  them ;  and  they 
visited  the  camp,  and  were  there  on  the  night  of  August  5,  1885, 
and  again  at  home  that  night.  During  that  night  or  early  next  morn- 
ing they  drove  the  wagons  and  teams  by  their  house,  got  some 
articles,  and  drove  out  of  Nevada,  a  few  miles,  and  camped  that  day. 
The  bodies  of  the  deceased  persons  were  found  near  their  camp 
in  the  brush,  covered  up  with  old  sacks  and  leaves,  where  they 
had  been  dragged.  A  knife  was  found  in  Stair's  pocket  with 
blood  on  it.  They  were  arrested  while  in  possession  of  the  wagons 
and  teams  and  other  articles  belonging  to  the  deceased.  The  con- 
viction was  reversed  only  as  to  Nannettie  Stair.1 

Recognizance  —  identity  of  prisoner  —  of  witness. 

§  152.  A  scire  facias  was  issued  against  one  Conrad  Carpenter, 
and  others,  his  sureties  on  a  forfeited  recognizance.  The  recogni- 
zance was  conditioned  for  the  appearance  of  Coonrod  Carpenter,  and 
signed  Conrad  Carpenter.  Process  was  issued,  but  not  served  on 
Carpenter.  It  was  held  (1)  that,  if  considered  as  a  misnomer  of 
the  Christian  name  of  Carpenter,  the  error  was  waived  by  his  failing 
to  plead  the  misnomer  in  abatement;  (2)  that  by  signing  the  recog- 
nizance he  admitted  that  he  was  the  person  therein  named  Coonrod 
Carpenter.2 

It  was  held  in  Massachusetts  that  on  the  trial  of  a  criminal  cause, 
where  the  only  question  was  the  identity  of  the  prisoner  with  the 
guilty  party,  the  jury  might  be  justified  in  a  verdict  of  guilty, 
though  no  witness  will  swear  positively  to  the  identity  of  the  ac- 
cused.3 The  rule  we  have  been  considering  applies  as  well  to  wit. 
nesses  as  to  the  parties  to  the  action.  In  a  recent  case  in  Missouri  it 
was  held  that  the  identity  of  the  name  of  a  witness  with  that  con- 
tained in  the  record  of  a  conviction  of  an  offense  creates  a  prima 
facie  presumption  of  the  identity  of  the  person.  Defendant  was 
tried  for  burglary  and  larceny  in  St.  Louis,  but  acquitted  as  to  the 
larceny  and  convicted  of  the  burglary  and  sentenced  to  the  peniten- 

1  State  v.  Stair,  87  Mo.  268.  And  see  Com.  v.   Byce,   8  Gray,  461; 

8  Carpenter  v.  State,  8  Mo.  291.  Smith  v.  Whitman,  6  Allen,  562. 

8  Com.  v.  Cunningham,  104  Mass.  545. 


IDENTITY  OF  PRISONER.  97 

tiary.  On  the  trial  the  defendant  testified  in  his  own  behalf,  and 
the  State  in  rebuttal  and  for  impeachment  offered  the  record  of  a 
conviction  of  Michael  McGuire  in  1873,  for  grand  larceny,  and  a 
sentence  of  two  years  in  the  penitentiary ;  it  was  objected  that  the 
defendant  was  not  otherwise  identified  as  the  person  convicted ;  thia 
was  overruled,  and  such  ruling  held  to  be  correct.1 

Indictment  —  variance  —  name. 

§  153.  Where  a  party  was  indicted  and  charged  with  an  assault  on 
one  "Silas  Melville"  with  intent  to  kill,  and  the  proof  showed  the 
assault  to  have  been  made  on  one  "  Silas  Melvin,"  it  was  held  to  be  a 
fatal  variance,  and  that  the  court  should  have  instructed  the  jury  to 
acquit.2  A  peculiar  case  occurred  in  Texas,  decided  in  1886.  It  ap- 
peared that  a  complaint  and  information  itnpleaded  "  Clements  Tur- 
ner." The  evidence  named,  and  the  verdict  and  judgment  condemned 
"  Turner  Clements."  The  record  failed  to  identify  the  party  ac- 
cused as  "Clements  Turner  "as  the  party  convicted;  and  the  Su- 
preme Court  on  error  held  that  the  variance  was  fatal.3 

Weapons  —  how  to  be  identified. 

§  154.  In  a  recent  case  in  Alabama,  Finch  was  indicted  jointly 
with  South  for  the  killing  of  one  Lindsay.  They  were  jointly  tried; 
Finch  was  convicted  of  manslaughter,  and  as  to  South  the  jury  dis- 
agreed. The  deceased  was  killed  by  cutting  with  a  knife,  and  it  was 
held  to  be  competent  to  show  that  the  defendant  had  borrowed  a 
knife  from  the  witness,  Sanford,  a  short  time  before  the  difficulty, 
as  an  act  of  preparation  for  an  expected  difficulty,  and  that  to  identify 
the  knife  it  was  proper  and  relevant  to  describe  the  knife.4  Where, 
in  an  indictment  for  murder  by  shooting,  as  shown  by  the  confession 
of  the  defendant  and  by  the  dying  declarations  of  the  deceased,  what 
the  range  of  the  gun  used  in  shooting,  and  the  size  of  the  buck- 
shot was,  with  which  it  was  loaded,  it  was  admissible  to  show,  by  the 
evidence  of  a  party.,  after  the  murder,  that  he  found  a  buckshot  of  the 
same  size  in  a  tree  within  said  range.5  In  Virginia,  in  1877,  one 
Dean  was  indicted  for  the  murder  oi  one  Furgate.  There  were  two 
trials  in  which  the  jury  failed  to  agree,  and  on  the,  third  trial  the  de- 

1  State  v.  McGuire,  87  Mo.  642.     And  3  Clements  v.  State,  21  Tex.  App.  258 

see  State  v.  Moore,  61  id.  276;  Gitt  v.  (1886). 

Watson,  18  id.  274;  Flournoy  v.  War-  4  Finch    v.    State.     81    Ala.    41,    49 

den,  17  id.  435.  (1886). 

3  State  v.  Curran,  18  Mo.  320.  5  Mose  v.  State,  36  Ala.  211. 

13 


98  THE  LAW  OF  IDENTIFICATION. 

fendant  was  found  guilty  of  murder  in  the  first  degree.  Deceased 
was  shot  in  the  back  by  an  unseen  assassin,  while  plowing  in  his  field 
on  a  Monday  morning,  June  25,  1877,  two  or  three  hundred  yards 
from  his  house.  His  wife  was  in  the  garden,  heard  the  gun  fire  and 
heard  the  cries  of  her  husband,  and  saw  his  horse  running  through 
the  field.  She  hurried  to  his  assistance,  and  inquired  what  was  the 
matter ;  he  replied,  "  I  am  shot ;  some  one  has  shot  me  from  the 
brush ;  "  these  were  his  last  words.  There  had  been  two  indict- 
ments for  perjury  found  against  Dean,  upon  the  testimony  of 
the  deceased,  and  hence  his  enmity.  It  was  held  competent  to  prove 
the  examination  of  the  guns  in  the  neighborhood  to  ascertain  whether 
any  of  them  would  carry  a  ball  the  same  size  of  the  one  found  in  the 
body  of  Furgate,  the  murdered  man.1  In  an  indictment  for  murder 
in  Indiana  it  was  held  that,  in  an  indictment  for  homicide  by  shoot- 
ing, the  kind  of  gun  used  in  the  act  of  killing,  and  the  shot  used 
need  not  be  specified  ;  nor  need  the  wound  be  described  ;  and  that 
an  indictment  containing  one  good  paragraph  should  not  be 
quashed.2 

Weapons  identified  by  comparison  —  anarchists. 

§  155.  Perhaps  one  of  the  most  important  cases  on  record  of  the 
identification  of  weapons  by  a  comparison  thereof  was  the  case  of  the 
anarchists  in  Illinois,  decided  by  the  Supreme  Court  of  that  State 
in  1887.  A  condensed  statement  of  the  case  is  given  by  Mr.  Kerr 
in  his  Law  of  Homicide,  §  458,  p.  504,  as  follows  :  "  "Where  the 
charge  against  the  defendant  is  the  making  of  the  weapon  or  in- 
strument with  which  the  killing  was  done,  in  furtherance  of  a  con- 
spiracy of  which  he  was  a  member,  it  is  proper  to  introduce  in  evi- 
dence other  weapons  or  instruments  made  by  him  of  the  same  kind, 
in  order  that  the  jury  may  compare  them  with  the  one  with  which 
the  killing  was  done,  and  so  be  aided  in  determining  whether  the 
defendant  was  the  maker.  Thus,  in  the  anarchists'  case,  the  police- 
man, for  whose  murder  the  defendants  were  indicted,  was  killed  by 
the  explosion  of  a  bomb  thrown  in  the  midst  of  the  police  force. 
On  the  trial  the  court  allowed  to  be  given  in  evidence,  bombs  and 
cans  containing  dynamite,  and  prepared  with  contrivances  for  ex- 
ploding it,  which  had  been  found  under  sidewalks  and  buried  in  the 
ground  at  certain  points  in  the  city,  placed  there  by  certain  of  the 
conspirators.  As  specimens  of  the  kind  of  weapons  which  Lingg, 
1  Dean  v.  Com.,  32  Oratt.  (Va.)  912.  »  Dukes  v.  State,  11  Ind.  557. 


IDENTITY  OF  PRISONER.  99 

the  one  of  the  conspirators  who  had  charge  of  their  manufacture, 
and  his  associates,  were  preparing,  and  as  showing  the  malice  and  evil 
heart  which  the  intended  use  of  such  weapons  indicated,  the  intro- 
duction of  bombs  made  by  him  was  not  improper.  The  jury  had  a 
right  to  see  them  and  compare  their  structure  with  the  description 
of  the  bomb  that  killed  the  policeman,  with  a  view  of  determining 
whether  Lingg,  as  was  charged,  was  the  maker  of  the  latter  or 
not."1  And  where  it  is  shown,  on  a  trial  for  manslaughter,  that  in- 
juries which  resulted  in  death  could  have  been  inflicted  with 
weapons  of  a  certain  kind,  it  was  held  competent  to  show  that  the 
defendant  had  in  his  possession  such  instruments  before  the  killing.2 
It  was  held  in  a  trial  for  murder  in  Georgia  that  a  witness  may 
answer  whether  an  instrument  which  he  has  heard  described,  but 
has  never  before  seen,  answers  the  description  given,  or  is  the  same 
instrument,  and  if  he  makes  an  improbable  statement,  it  may  be 
made  the  subject  of  comment  before  the  jury  in  argument.3 

On  the  trial  of  an  indictment  for  murder  it  was  improper  to  permit 
a  witness  to  experiment  with  the  weapon  or  instrument  with  which 
the  homicide  was  alleged  to  have  been  committed,  for  the  purpose 
of  determining  the  manner  of  its  working.  And  so  in  Nebraska, 
the  Supreme  Court  held  that  the  sheriff  could  not  be  permitted  to 
discharge  a  pistol  used  by  the  prisoner,  to  see  whether  it  would  go 
off  half-cocked,  as  the  prisoner  claimed,  and  to  furnish  evidence 
thereby  to  sustain  the  theory  of  the  prisoner  that  the  killing  was  ac- 
cidental, the  revolver  having,  as  he  claimed,  gone  off  half-cocked. 
The  court  said :  "  In  the  first  place,  the  judge  had  no  authority  to 
require  the  sheriff  to  make  the  experiment,  and  in  the  second  place, 
the  possibility  of  a  discharge  at  half-cock  could  have  been  shown 
just  as  well  with  the  chambers  of  the  revolver  empty  as  by  an  actual 
discharge.4  In  a  late  Virginia  case,  the  prisoner  and  the  deceased 
had  been  living  together  as  man  and  wife,  and  for  some  time  he  had 
staid  almost  nightly  at  the  house  of  the  deceased.  She  became 
jealous  of  his  attentions  to  another  woman,  and  a  quarrel  ensued. 
He  struck  her  and  threatened  to  kill  her.  On  the  night  of  the 
homicide,  he  had  not  returned  home  up  to  bedtime.  She  looked  out  of 
the  house  and  saw  two  persons  standing  in  an  alley  near  by.  She  said  : 
"  Yonder  stands  two  persons  at  the  corner  of  the  lot ;  it  looks  like 
Harry  Thomas  and  his  sweetheart,  I  think ;  I  am  going  to  see  if  it 

1  Spies  v.  People,  122  HI.  1  (1887).  *  Cobb  v.  State,  27  Ga.  648. 

8  Finch  v.  State,  81  Ala.  41.  4  Polin  v.  State,  14  Neb.  540. 


100  THE  LAW  OF  IDENTIFICATION. 

is  them,  and  am  coming  back  right  away  to  the  house.  She  went 
toward  the  couple,  who  separated  and  moved  off  in  different  direc- 
tions. Deceased  and  defendant  were  heard  talking  in  angry  tones 
in  the  alley.  He  did  not  return  to  her  house  that  night.  He  went 
to  work  as  usual  the  next  morning.  A  stick  which  he  left  at  the 
house  where  he  staid  that  night  showed  stains  apparently  of  blood. 
Deceased  never  returned  to  her  house  after  leaving  it  as  above 
stated.  The  next  morning  she  was  found  dead  a  short  distance  down 
the  alley,  with  her  throat  cut  and  a  contusion  on  the  side  of  her  head 
as  though  she  had  been  struck.  The  jury  found  the  prisoner  guilty 
and  recommended  that  he  be  imprisoned  for  life.  He  was  identified 
by  his  stick  and  the  blood  on  it.  The  court  said  :  "  That  silent  but 
never  perjured  witness,  his  stick,  with  its  finger  prints  of  blood,  was 
left  at  the  house  where  he  spent  the  night.  There  he  sat.  a  culprit 
who  could  not  sleep,  because  conscience  was  awake  and  drove  sleep 
away."1 

Clothing  —  burning  —  bloody. 

§  156.  A  case  of  great  atrocity  was  decided  by  the  Supreme  Court 
of  Georgia  in  1885.  The  accused  was  indicted  and  found  guilty  of 
the  murder  of  his  wife  in  the  Superior  Court  of  Upson  county.  The 
evidence  showed  that  the  accused  and  the  deceased  were  at  home  the 
night  previous  to  the  homicide ;  that  they  had  a  quarrel ;  the  next 
morning  the  accused  was  seen  leaving  the  house  by  jumping  from  the 
window ;  very  soon  thereafter  the  smell  of  clothes  burning  ;  several 
parties  went  to  the  house,  burst  open  the  doors,  and  discovered  the  de- 
ceased lying  in  the  fire  badly  burned,  her  head  smashed  in,  skull  broken 
and  her  throat  cut.  She  was  dead.  A  pair  of  pants  were  found 
lying  close  by,  bloody,  and  they  were  identified  as  those  worn  by  the 
accused  the  night  before ;  an  ax  and  knife  were  also  found  which 
had  blood  on  them  ;  they  belonged  to  the  accused.  The  confessions 
of  the  accused  were  proved  to  the  effect  that  he  went  up  behind  his 
wife,  struck  her  on  the  head  with  an  ax  and  cut  her  throat  with  a 
knife.  His  shirt  and  drawers  were  also  bloody.  Of  course  he  was 
convicted  and  the  judgment  affirmed.2 

1  Thomas  v.  State,  67  Qa.  460.  'Drake  v.  State,  75  Ga.  418. 


CHAPTER  Y. 

PHOTOGRAPHS. 

SEC.  SEC. 

157.  Photograph  —  premises  —  when    168.  Dead  body  —  photograph  —  cloth- 

admissible  in  evidence.  ing  —  wound. 

158.  Same  —  evidence  —  action  against    169.  Photographic  view  of  premises  — 

highway.  when  admissible. 

159.  Photographs  of  two  dead  men —    170.  Photograph  of  handwriting — plea 

murder.  of  non  estfactum. 

160.  Widow  —  identity  —  photograph  of    171.  Photographic  copies  —  papers  with- 

dead  husband.  drawn  —  identity. 

161.  Photograph  in  case  of  bigamy —    172.  Photograph  of  deceased  person  — 

identity.  of  handwriting. 

162.  Use  of  photographs  in  case  of  big-    173.  Photograph  of  handwriting — rule 

arny.  in  Texas. 

163.  Same  —  proof  of  good  likeness —    174.  Same  —  rule  as  to  proof  of. 

expert.  175.  Test   of    genuine    handwriting  — 

164.  Same  —  state  of  health  —  life  in-  forgery. 

surance.  176.  Same  —  alleged  alteration  of  check. 

165.  Pictures  and  inscriptions  —  evi-     177.  Same  —  another  use  —  examining 

dence  of  pedigree.  bread. 

166.  Two  photographs  of  child  —  rule    178.  Land  grant  —  signature  —  photo- 

in  New  York.  graph  copy. 

167.  Photograph  evidence  —  murder  for 

life  insurance. 

Photograph  —  premises  —  when  admissible  in  evidence. 

§  157.  Where  an  action  was  brought  to  recover  damages  of  de- 
fendant for  injuries  inflicted  upon  plaintiffs  possession,  etc.,  a  photo- 
graph of  plaintiff's  premises,  as  affected  by  defendant's  use  and  oc- 
cupation of  the  same,  is  competent  evidence  as  an  aid  to  the  jury  in 
applying  the  evidence  and  showing  the  condition  of  the  premises  at 
the  time  it  was  taken.  The  court  said :  "  The  photographic  view  of 
the  cellar  was  an  appropriate  aid  to  the  jury  in  applying  the  evidence, 
as  it  was  taken  in  the  month  of  November,  and  showed  the  condi- 
tion of  the  premises  at  that  time."1 

A  telegraph  company  in  England  was  indicted  for  obstructing  a 
highway.  That  the  public  is  prima  facie  entitled  to  the  use  of 
every  portion  of  an  ordinary  highway  lying  between  the  fences 
inclosing  it  is  matter  of  law,  though  what  is  a  permanent  obstruc- 
tion placed  on  a  highway,  rendering  it  less  commodious  than  before, 
and  so  amounting  to  a  public  nuisance,  is  a  question  of  fact  for  the 
jury.  Photographs  are  allowed  to  be  used  on  the  trial  of  au  indict- 

1  Cozzens  v.  Higgins,  3  Keyes,  206. 


102  THE  LAW  OF  IDENTIFICATION. 

meat  for  an  obstruction  to  a  highway  to  show  the  nature  of  the 
locus  in  quo.1 

Same  —  evidence  —  action  against  highway. 

§  158.  In  an  action  against  a  town  to  recover  for  injuries  caused 
by  a  defect  in  the  highway,  which  the  town  was  bound  to  keep  in 
repair,  a  photograph  of  the  place  is  admissible  in  evidence,  if  veri- 
fied by  proof  that  it  is  a  true  representation,  to  assist  the  jury  in  un- 
derstanding the  case ;  and  whether  it  is  sufficiently  verified  is  a  pre- 
liminary question  of  fact,  to  be  decided  by  the  judge  presiding  at  the 
trial,  and  his  decision  thereon  is  not  subject  to  exception.  The  court 
disposed  of  this  question  thus :  "  A  plan  or  picture,  whether  made 
by  the  hands  of  man  or  by  photograph,  is  admissible  in  evidence,  if 
verified  by  proof  that  it  is  a  true  representation  of  the  subject,  to 
assist  the  jury  in  understanding  the  case.  *  *  *  "Whether  it  is 
sufficiently  verified  is  a  preliminary  question  of  fact,  to  be  decided 
by  the  judge  presiding,  and  not  open  to  exception."2 

Photographs  of  two  dead  men  —  murder. 

§  159.  Upon  a  criminal  trial  photograph  likenesses,  taken  after 
the  death  of  the  person,  when  it  is  material  to  identify  the  dead 
body,  may  be  exhibited  to  witnesses  acquainted  with  such  persons 
in  life,  as  aids  in  the  identification.  One  Ruloff  was  convicted  for 
the  murder  of  Merrick,  at  Binghamton,  New  York,  on  August  17, 
1870.  Deceased  was  a  clerk  in  a  store ;  he  and  another  clerk  (Bur- 
rows) slept  in  the  store,  awoke  about  two  o'clock,  and  saw  three  men 
disguised  near  their  bed ;  they  had  fixed  their  packages  of  goods 
ready  for  removal.  The  clerks  arose ;  Burrows  engaged  one ;  deceased 
went  to  assist  him,  when  one  of  the  others  shot  him  in  the  head,  and 
he  died  instantly.  The  burglars  made  their  escape.  A  day  or  two 
later,  the  bodies  of  two  dead  men  were  taken  from  the  Chen  an  go 
river  in  the  immediate  vicinity,  whom  the  evidence  tended  to  show 
were  two  of  the  burglars.  About  this  time  Ruloff  was  found  skulk- 
ing in  the  neighborhood  and  was  arrested  as  and  for  the  other  bur- 
glar and  the  murderer  of  Merrick.  Further  evidence  identified  the 
drowned  men  as  individuals  intimately  connected  with  Ruloff,  the 

»Re£.  v.  Tel.  Co.,  8  Fost.  &  P.  78.  Udflerzook   v.    Com.,    76  Pa.    St.    840; 

1  Blair  v.  Pelham,  118  Mass.  420.  Tit-  Ruloff  v.  People,  45  N.  T.  213;  Church 

ingMarcy  v.  Barnes,  16  ftray,  161:  Hoi-  v.  Milwaukee,  81  Wig.  512;  Com.  v.  Coe, 

lenbeck  v.  Rowley,  8  Allen.  473;  Co/-  115  Mass.  481;  Walker  v.  Curtis,  116 

.  Higgins,  1  Abb.Ct.  App.  Dec.451;  id.  98. 


PHOTOGRAPHS.  103 

prisoner.  Photographic  likenesses  of  the  dead  men  were  taken,  and 
were  submitted  to  their  relatives  and  acquaintances,  who  were  per- 
mitted to  give  their  opinion,  as  witnesses,  as  to  their  identity.  In 
Ruloffs  chests  in  New  York  were  found  burglar's  tools,  and  they 
were  given  in  evidence.  He  was  convicted,  and  the  judgment  was 
affirmed.  As  to  the  photographs  as  a  means  of  identifying  the  dead 
men,  the  court  said  :  "  Objection  is  also  taken  to  the  admission  of 
the  photographic  likenesses  of  the  two  persons  found  drowned. 
Evidence  was  given  of  the  manner  in,  and  the  disadvantageous  cir- 
cumstances under  which  they  were  taken ;  and  the  evidence  was 
that  they  were  not  artistic  pictures,  nor  in  all  respects  the. most  per- 
fect likenesses  that  could  be  taken.  This  was  fully  explained  by  the 
artist,  and  the  reasons  why  they  were  not  more  perfect,  stated.  They 
were  submitted  to  the  witnesses,  not  as  themselves  alone  sufficient 
to  enable  them  to  identify  the  persons  with  entire  certainty,  but 
as  aids,  with  the  other  evidence,  to  enable  the  jury  to  pass  upon  the 
question  of  identity.  They  were  the  best  portraits  that  could  be  had 
and  all  that  could  be  taken.  The  persons  were  identified  by  other 
circumstances  —  the  clothes  they  wore  and  the  articles  found  upon 
their  persons,  and  their  general  description ;  and  the  photographs 
were  competent,  although  slight,  evidence  in  addition  to  the  other 
and  more  reliable  testimony.  We  are  of  opinion  that  it  was  not 
error,  under  the  circumstances,  to  admit  them  as  evidence  for  what 
they  were  worth.  By  themselves  they  would  have  been  of  little 
value,  but  they  were  of  some  value  as  corroborating  the  other  evi- 
dence identifying  the  dead  bodies."1 

Widow  —  identity  —  photograph  of  dead  husband. 

§  160.  The  court  will  take  judicial  notice  of  the  art  of  photogra- 
phy, the  mechanical  and  chemical  processes  employed,  the  scientific 
principles  on  which  they  are  based,  and  their  results.  A  photograph 
shown  by  the  widow  to  be  a  good  likeness  of  her  husband,  and  an 
indorsement  thereon,  in  his  handwriting,  of  his  name,  date  and  place 
of  its  execution,  are  admissible  in  evidence  to  show  the  identity  of 
the  husband  and  a  murdered  man,  when  offered  in  connection  with 
the  testimony  of  the  photographer  that  it  was  the  likeness  of  a  man 
of  the  same  name  as  the  husband,  taken  at  the  place  and  about  the 
time  indorsed  on  it,  and  the  further  testimony  of  a  witness,  who 
saw  deceased  shortly  before  and  after  his  death. 
1  Ruloff  v.  People,  45  N.  T.  213. 


104  THE  LAW  OF  IDENTIFICATION. 

One  Luke  having  been  murdered  in  Alabama  by  disguised  men 
on  July  12,  1870,  his  widow  brought  suit,  under  the  act  of  legisla- 
ture of  December  28,  1868,  against  the  county  of  Calhoun,  to  recover 
the  statutory  penalty  of  $5,000.  She  never  resided  in  the  United 
States,  but  was  a  subject  of  Great  Britain  and  resided  in  Canada,  which 
country  her  husband  left  and  went  to  Alabama  a  few  months  before 
his  death.  To  show  that  the  dead  man  was  her  husband,  she  offered 
in  evidence  the  photograph,  as  above  stated,  of  her  deceased  hus- 
band. It  was  further  shown  by  the  witness  Smith,  the  deputy 
sheriff,  from  whom  Luke,  the  deceased,  was  taken  by  the  persons  in 
disguise,  and  who  saw  the  body  after  his  death,  that  it  was  a  good 
likeness  of  the  murdered  man.  The  photograph  was  held  to  have 
been  properly  admitted  in  evidence.  The  widow  recovered,  as  the 
sequel  showed,  a  judgment  for  the  penalty  of  $5,000.  The  county 
appealed,  and  pen  ding  the  appeal,  the  legislature  repealed  the  law,  and 
she  recovered  nothing  by  her  suit.1 

Photograph  —  in  case  of  bigamy  —  identity. 

§  161.  It  was  held  in  England,  in  1864-,  that,  on  an  indictment  for 
bigamy,  a  photographic  likeness  of  the  first  husband  might  be  al- 
lowed to  be  shown  to  the  witness  present  at  the  first  marriage,  in 
order  to  prove  his  identity  with  the  person  mentioned  in  the  mar- 
riage certificate.  Mary  Tolson  was  indicted  for  that  on  September 
1,  1860,  she  feloniously  intermarried  with  one  Harris,  her  first  hus- 
band being  then  alive.  The  certified  extract  from  the  register  of 
the  marriage  register  book  of  a  regiment,  showing  a  marriage,  in 
1855,  between  one  E.  "W.  Tolson  and  a  person  of  the  same  name  as 
the  prisoner,  was  produced  and  put  in.  WILLKS,  J.  —  "  Evidence  of 
identity  will  be  necessary."  A  witness  present  at  the  marriage  was 
called  and  proved  the  identity  of  the  prisoner,  and  then,  in  order  to 
prove  the  identity  of  the  first  husband  with  the  person  mentioned 
in  the  certificate^  it  was  proposed  to  show  the  witness  a  photograph 
taken  from  the  prisoner,  who  had  said  it  was  that  of  her  first  hus- 
band, and  to  ask  the  witness  if  it  represented  the  man  whom  he  had 
seen  married :  this  was  permitted,  and  the  witness  said  there  was  a 
resemblance,  and  she  believed  the  man  was  the  same.  A  sergeant 
in  the  same  regiment  was  called,  who  said  that  he  knew  the  man 
named  E.  W.  Tolson  in  that  regiment,  who  was  stationed  at  Canter- 
bury in  1858,  and  went  to  India  that  year,  where  he  saw  him  in 
1  Luke  v.  Callioun  County,  52  Ala.  115. 


PHOTOGRAPHS.  105 

1863.  Being  shown  the  photograph,  he  said  that  was  the  man,  and 
there  was  no  other  man  of  the  same  name  in  the  regiment.  This 
was  admitted  as  proof  of  the  first  marriage.  The  second  marriage 
was  proved  by  the  second  husband,  the  prosecutor,  who  was  cross- 
examined  as  to  his  credibility,  and  it  was  he  who  spoke  of  the  pris- 
oner's declaration  that  the  photograph  was  that  of  her  first  husband. 
WILLES,  J. — (to  the  jury)  "The  photograph  was  admissible  be- 
cause it  is  only  a  visible  representation  of  that  image  or  impression 
made  upon  the  minds  of  the  witnesses  by  the  sight  of  the  person  or 
the  object  it  represents;  and  therefore  is,  really,  only  another  species  of 
the  evidence  which  persons  give  of  identity,  when  they  speak  merely 
from  memory.  You  must  be  satisfied  of  the  identity  of  the  prisoner 
on  the  occasions,  both  of  the  first  and  second  marriage,  of  which 
there  is  no  evidence  but  that  of  the  prosecutor,  whom  you  are  not 
bound  to  believe."1  The  jury  returned  a  verdict  of  "  not  guilty." 

TJse  of  photograph  in  case  of  bigamy. 

§  1 62.  In  the  days  of  Mr.  Roscoe'  s  writing  he  refers  to  the  fact  that 
photographic  likenesses  may  often  be  used  for  the  purpose  of  iden- 
tification, that  it  was  constantly  done  in  actions  for  divorce,  and  that 
it  had  then  been  allowed  even  in  a  criminal  trial.  Where  a  woman 
was  tried  for  bigamy,  a  photograph  of  her  first  husband  was  allowed 
by  WILLES,  J.,  to  be  shown  to  witnesses  present  at  the  first  marriage, 
in  order  to  prove  his  identity  with  the  person  mentioned  in  the  cer- 
tificate of  marriage.  Now  they  are  used  in  many  cases  in  civil  and 
criminal  causes,  and  not  confined  to  personal  identity.2 

Same  —  proof  of  good  likeness  —  expert. 

§  163.  Photographic  copies  of  persons  and  things  are  used  only 
for  the  purpose  of  identifying  the  original,  and  a  photographer  is  ad- 
missible as  a  witness  to  prove  the  character  of  the  execution  of  the 
photograph.  And  although  none  but  experts  as  witnesses  may  tes- 
tify as  to  the  execution  of  the  photograph,  it  was  held  in  Alabama, 
in  1863,  that  to  enable  a  person  to  determine  whether  the  picture 
resembled  the  original,  required  no  special  skill  in,  or  knowledge  of, 
the  photographic  art ;  and  that  on  that  question,  a  person  for  whom 
a  picture  had  been  taken,  although  possessing  no  special  skill  or 
knowledge  of  the  art,  may  testify  that  the  picture  was  a  good  like- 
ness.3 

1  Reg.  v.  Tolson,  4  Fost.  &  F.  103  8  Roscoe  Ev.  at  n.  p.  125.  Citing 
(1864).  Reg.  v.  Tolson,  4  Fost.  &  F.  103. 

8  Barnes  v.  Ingalls,  39  Ala.  193. 

14 


106  THE  LAW  OF  IDENTIFICATION. 

Same  —  state  of  health  —  life  insurance. 

§  164.  An  important  case  was  decided  in  Philadelphia,  in  1873. 
It  was  an  action  upon  a  policy  of  life  insurance  upon  the  life  of  Eu- 
ricka  Random  for  $5,000.  The  defense  was,  fraudulent  representa- 
tions in  the  application.  She  died  suddenly,  ten  days  after  the  ap- 
plication was  made,  and  the  weight  of  evidence  was  that  she  died  of 
abscess  of  the  right  lung,  as  shown  by  the  post-mortem  examination. 
Plaintiff  produced  a  photograph  of  the  deceased,  which  was  proved 
to  be  a  correct  and  truthful  representation  of  her  a  week  before  her 
death.  The  photograph  was  then  shown  to  the  jury,  over  the  ob- 
jection of  the  defendant.  The  court  said :  "  But  we  think  that  the 
photograph  thus  proved  and  verified  by  witnesses  who  saw  the  orig- 
inal at  a  period  approximating  so  near  the  date  of  her  contract  of  in- 
surance, was  competent  to  go  to  the  jury  as  evidence  of  her  appa- 
rent bodily  condition  at  that  time."1 

Pictures  and  inscriptions  —  evidence  of  pedigree. 

§  165.  The  rule  of  law  as  to  the  admissibility  of  photographs  in 
evidence  seems  to  be,  that  it  is  only  where  the  original  cannot  be 
produced  that  they  can  be  received,  under  the  rule  admitting 
secondary  evidence;  then  the  photographic  copy,  when  properly 
proven,  is  of  great  value,  i.  e.,  of  persons  dead  or  who  cannot  be 
produced  in  court ;  it  may  then  be  used  to  identify  the  person  it 
purports  to  represent,  but  the  picture  must,  in  all  cases,  be  duly 
authenticated.  In  the  Oamoy  Peerage  Case,  one  of  several  co- 
heirs to  a  barony  in  abeyance  which  had  been  created  by  a  writ  of 
summons  and  sitting  in  Parliament,  was  attainted  of  high  treason. 
His  son  and  heir  was  restored  in  blood  only,  by  act  of  Parliament, 
expressly  excepting  honor  and  hereditaments.  It  was  held  to  be 
competent  to  the  crown  to  terminate  the  abeyance  of  the  barony  in 
favor  of  the  heir  of  the  attainted  co-heir,  or  of  the  heir  of  any  other 
co-heirs,  and  that  the  right  to  terminate  the  abeyance  in  favor  of 
any  of  the  other  co-heirs  was  not  affected  by  the  attainder,  and  that 
all  pedigrees  produced  from  the  custody  of  a  person  whose  ancestor 
was  connected  by  marriage  with  the  family  described  in  the  pedigree, 
are  admissible  as  evidence  to  show  the  state  of  family;  and  an  in- 
scription on  an  old  portrait  of  one  of  the  family,  produced  from  the 
same  custody,  was  admissible  for  the  same  purpose.  In  the  course 

1  Schaible   v.    L.    Ins.    Co.,   9    Phila.  186,  188. 


PHOTOGRAPHS.  107 

of  the  investigation,  the  committee  said  that  as  there  was  a  person 
who  could  give  a  better  account  of  the  history  and  custody  of  the 
documents  presented,  he  ought  to  be  called.  The  same  witness  was 
about  giving  in  an  inscription  on  a  picture  which  he  saw  at  Rayn- 
ham  Hall.  It  was  the  picture  of  a  youth,  placed  in  a  fixed  panel 
over  the  fireplace  in  the  billiard-room;  and  the  inscription  was 
"  Lewknor,  brother  to  Mary,  the  first  wife  of  Horatio  Lord  Town- 
send"  objection  was  made  but  it  was  overruled  and  this  statement 
was  received  in  evidence.1 

Two  photographs  of  child  —  rule  in   New  York. 

§  166.  The  New  Tork  court  held  that  photographic  pictures,  when 
sworn  to  be  correct  resemblances  of  the  person  or  thing,  are  competent 
as  evidence.  One  Cowley  was  indicted  under  the  statute  of  1876  — 
to  prevent  and  punish  wrongs  to  children  —  charged  with  having  neg 
lected  to  give  a  child  "  Yictor,"  in  the  custody  and  charge  of  the  said 
defendant,  proper  food,  clothing,  etc.,  causing  and  permitting  the 
health  of  the  child  "Victor"  to  be  impaired  and  injured,  and  fail- 
ing to  give  him  proper  medical  attendance  when  he  was  ill,  etc. 
The  prosecution  offered  in  evidence  two  pictures  of  the  child — one 
taken  before  he  went  into  the  custody  of  the  defendant,  and  the 
other  taken  two  weeks  after  he  wen  tout  of  such  custody  —  to  show; 
the  difference  in  appearance  ;  both  proved  to  be  correct  pictures,  ex- 
cept that  the  latter,  as  the  doctor  said,  owing  to  its  position,  did  not 
show  the  emaciation  of  the  child  to  be  as  great  as  it  really  was. 
Upon  the  competency  of  this  evidence,  they  were  held  to  be  admis- 
sible. The  court  said :  "  We  know  not  of  a  rule  applicable  to  all 
cases,  ever  having  been  declared,  that  they  are  not  competent.  Nor 
do  we  see,  in  the  nature  of  things,  a  reason  for  a  rule  that  they  are 
never  competent.  We  do  not  fail  to  notice,  and  we  may  notice 
judicially,  that  all  civilized  countries  rely  upon  photographic 
pictures  for  taking  and  presenting  resemblances  of  persons  and 
animals,  of  scenery  and  all  natural  objects,  of  buildings  and  other 
artificial  objects.  It  is  of  frequent  occurrence  that  fugitives  from 
justice  are  arrested  on  the  identification  given  by  them.  "  The 
Rogues'  Gallery  "  is  the  practical  judgment  of  the  executive  officers 
of  the  law  on  their  efficiency  and  accuracy.  They  are  the  signs  of 

1  Camoy  Peerage  case,  6  Clark  &  Fin.  801  (1839). 


108  THE  LAW  OF  IDENTIFICATION. 

the  things  taken.  A  portrait  or  miniature  taken  by  a  skilled  artist, 
and  proved  to  be  an  accurate  likeness,  would  be  received  on  a  ques- 
tion of  identity  or  the  appearance  of  a  person  not  producible  in  court. 
Photograph  pictures  do  not  differ  in  kind  of  proof  from  the  picture 
of  a  painter.  They  are  the  product  of  natural  laws  and  a  scientific 
process."1 

Photograph  evidence  —  murder  for  life  insurance. 

§  167.  The  courts  now  judicially  recognize  photographs  as  a  pro- 
per means  of  evidence  to  prove  identity  of  persons,  things,  objects, 
and  premises,  in  all  proper  cases,  and  when  they  are  shown  to  be 
good  likenesses,  and  correct  resemblances.  And  they  may  be  given 
in  evidence  to  prove  identity.  On  the  trial  of  one  Udderzook  in 
Pennsylvania  for  the  murder  of  "  Goss  alias  Wilson,"  a  photograph 
of  Goss,  testified  to  be  like  the  mutilated  body  found,  was  evidence 
to  be  submitted  to  the  jury,  that  the  body  was  that  of  Goss.  The 
prisoner  and  the  deceased  were  brothers-in-law,  having  married  sisters, 
Prior  to  February  2,  1872,  Goss  had  obtained  insurance  on  his  life 
in  several  companies  to  a  large  amount,  for  the  benefit  of  his  wife. 
About  February,  1872,  he  occupied  a  shop  about  three  miles  from 
Baltimore,  and  resided  in  the  city,  and  was  engaged  in  gilding  pic- 
ture frames.  On  February  2,  1872,  the  shop  was  destroyed  by  fire, 
and  among  the  ruins  was  found  the  remains  of  a  human  body,  alleged 
to  be  the  body  of  Goss.  The  prisoner  made  the  preliminary  proofs 
as  to  identity,  etc.,  to  obtain  the  money  for  the  wife  of  Goss.  Pay- 
ment was  refused,  the  companies  denying  that  it  was  the  body  of 
Goss,  and  she  brought  suit  and  recovered  a  verdict.  While  a  motion 
was  pending  for  a  new  trial,  other  facts  developed,  which  led  to  the 
arrest  of  Udderzook.  On  the  9th  of  July,  1873,  a  dead  body  was 
found  concealed  in  the  woods  near  "  Bear's  Woods  "  in  Pennsylvania, 
which  by  means  as  above  stated,  and  by  letters  and  proof  of  hand- 
writing, showed  it  to  be  the  body  of  Goss,  and  to  connect  the  pris- 
oner with  the  terrible  tragedy.2  Since  the  discovery  of  the  art  of 
photography  it  has  been  called  into  requisition  in  the  court  for 
various  purposes  where  the  question  of  identity  has  been  involvedj 
and  the  courts  take  judicial  cognizance  of  it  as  a  means  of  aiding  the 

'Cowl  07    v.  People,   83  N.    Y,   404        *  Udderzook  v.  Com. ,  76  Pa.  St.  340. 
(1881). 


PHOTOGRAPHS.  109 

jury,  not  only  to  identify  persons,  but  objects,  things,  scenery,  places, 
premises  and  handwriting  etc.* 

Dead  body  —  photographs  —  clothing  —  wound. 

§  168.  The  same  authors,  at  §  673,  vol.  3,  give  the  following  curi- 
ous English  case  of  identity  by  photographs :  "  In  1868,  in  all  prob- 
ability an  escaped  lunatic,  named  Heasman,  was  found  in  a  cupboard 
of  a  house  in  Hackney,  England,  dead.  Great  publicity  had  been 
given  to  the  circumstance  attending  the  discovery  of  his  body,  and 
the  result  was  that  a  crowd  of  persons,  most  of  them  bringing  photo- 
graphs, visited  the  dead-house  to  see  if  the  features  corresponded 

*In  Udderzook  v.  Commonwealth,  76  Pa.  St.  340,  which  was  an  indictment  for  murder, 
AGNEW.  C.  J. ,  said:  "  All  the  bills  of  exception,  except  one,  relate  to  the  question  of  identity,  the 
most  being  those  relating  to  the  use  of  a  photograph  of  Goss.  This  photograph,  taken  in  Balti- 
more, on  the  same  plate  with  a  gentleman  named  Langley,  was  clearly  proved  by  him,  and  also 
by  the  artist  who  took  it.  Many  objections  were  made  to  the  use  of  the  photograph,  the  chief  being 
to  the  admission  of  it  to  identify  Wilson  as  Goss,  the  prisoner's  counsel  regarding  this  use  of  it 
as  certainly  incompetent.  That  a  portrait  or  a  miniature,  painted  from  life  and  proved  to  re- 
semble the  person,  may  be  used  to  identify  him  cannot  be  doubted,  though,  like  all  other  evi- 
dence of  identity,  it  is  open  to  disproof  or  doubt,  and  must  be  determined  by  the  jury.  There 
seems  to  be  no  reason  why  a  photograph,  proved  to  be  taken  from  life  and  to  resemble  the  per- 
son photographed,  should  not  fill  the  same  measure  of  evidence.  It  is  true  the  photographs  we 
see  are  not  the  original  likeness;  their  lines  are  not  traced  by  the  hand  of  an  artist,  nor  can  the 
artist  be  caued  to  testify  that  he  faithfully  lined  the  portrait.  They  are  but  paper  copies  taken 
from  the  original  plate,  called  the  negative,  made  sensitive  by  chemicals,  and  printed  by  the 
sunlight  through  the  camera.  It  is  the  result  of  art,  guided  by  certain  principles  of  science.  In 
the  case  before  us,  such  a  photograph  of  the  man  Goss  was  presented  to  a  witness  who  had 
never  seen  him,  so  far  as  he  knew,  but  had  seen  the  man  known  as  Wilson.  The  purpose  was  to 
show  that  Goss  and  Wilson  were  one  and  the  same  person.  It  is  evident  that  the  competency 
of  the  evidence  in  such  a  case  depends  on  the  reliability  of  the  photograph  as  a  work  of  art,  and 
this,  in  the  case  before  us,  in  which  no  proof  was  made  by  experts  of  this  reliability,  must  de- 
pend upon  the  judicial  cognizance  we  may  take  of  photographs  as  an  established  means  of  pro- 
ducing a  correct  likeness.  The  daguerrean  process  was  first  given  to  the  world  in  1839.  It  was 
soon  followed  by  photography,  of  which  we  have  had  nearly  a  generation's  experience.  It  has 
become  a  customary  and  a  common  mode  of  taking  and  preserving  views  as  well  as  the  likenesses 
of  persons,  and  has  obtained  universal  assent  to  the  correctness  of  its  delineations.  We  know- 
that  its  principles  are  derived  from  science;  that  the  images  on  the  plate,  made  by  the  rays  of 
light  through  the  camera,  are  dependent  on  the  same  general  laws  which  produce  the  images  of 
outward  forms  upon  the  retinae  through  the  lenses  of  the  eye.  The  process  has  become  one  in 
general  use,  so  common  that  we  cannot  refuse  to  take  judicial  cognizance  of  it  as  a  proper 
means  of  producing  correct  likenesses." 

In  Wharton  &  Stale's  Med.  Jur.,  vol.  3,  §670,  we  find  the  following:  "  During  the  mayoralty 
of  the  Hon.  John  M.  Scott,  in  1842-43,  rough  pen  and  pencil  sketches  were  made  of  the  counte- 
nances of  the  prisoners,  the  remembrance  of  whom  it  was  thought  desirable  to  perpetuate. 
Of  these  there  now  remain  on  file,  etc.,  sketches  of  twelve  individuals;  this  may  be  considered 
as  the  first  approach  toward  the  formation  of  the  Rogues  Gallery;  these  have  been  found  use- 
ful in  a  number  of  instances.  During  the  administration  of  Mayor  Gilpin  from  1875  to  1880 
daguerreotypes  and  ambrotypes  of  noted  men  in  police  annals  were  made  the  nucleus  of  a  gal- 
lery, though  kept  in  a  trunk  under  lock  and  key  most  of  the  time.  They  were  seldom  exhibited 
to  others  than  officers  of  the  detective  department  of  police.  With  the  present  administration 
the  gallery  of  photographs  commenced,  and  has  been  carried  forward  to  its  present  condition, 
numbering  now  (April  24,  1860)  two  hundred  and  sixty-six  portraits.  It  has  been 
thought  desirable  in  furtherance  of  police  ends,  to  add,  as  far  as  possible,  the  portraits 
of  men,  notorious  in  other  cities,  but  who  occasionally  visit  us  professionally.  Exchanges 
have  been  made  to  some  little  extent  with  New  York,  Albany,  Pittsburg,  etc.,  and 
pictures  received  have  been  hung  up  in  our  gallery.  As  regards  the  pictures  of  men 
known  to  the  police  as  rogues  of  a  high  grade,  very  few  of  these,  as  yet,  are  known 
to  exist  in  any  portion  of  the  land.  Generally,  these  men  will  not,  under  any  con- 
sideration, sit  for  their  portraits.  When  in  custody,  and  are  therefore  secure,  the  question 
is  often  asked,  how  do  you  get  the  consent  of  these  men  and  women  to  sit  and  have  their  like- 
nesses taken  to  be  hung  up  for  general  exhibition  ?  The  answer  is,  sometimes  by  threats  of 
thirty  days'  imprisonment  as  the  alternative  of  refusal;  at  others,  and  in  most  cases,  the 
parties  have  been  arrested  for  the  commission  of  some  crime,  and,  having  years  of  imprison- 
ment before  them,  are  reckless  and  regardless  of  consequences,  so  far  as  their  pictures  are 
concerned,  and  yield  readily  to  the  demand  therefor.  The  greater  portion  of  the  pictures  in  our 
gallery  are  the  pictures  taken  under  these  circumstances,  and,  therefore,  for  any  practical  pur- 
pose are  by  the  writer  deemed  almost  useless  —  especially  so  with  regard  to  the  younger  portion 
of  them.  They  alter  so  materially  in  person,  etc.,  as  often  to  be  hardly  recognized  after 
years  of  imprisonment.  The  one  great  idea,  it  was  said.  "  in  establishing  the  Rogues  Gallery, 
should  be  to  enlarge  the  acquaintance  of  detective  officers  with  individuals  with  whom  they  have 
to  do,  and  thus  to  give  the  officers  greater  facilities  in  the  performance  of  official  duty." 


110  THE  LAW  OF  IDENTIFICATION. 

with  those  of  missing  friends.  Among  the  visitors  was  Dr.  Ellis, 
medical  superintendent  of  St.  Luke's  Hospital,  who  recognized  the 
body,  showed  that  the  clothing  were  those  of  a  patient  in  St.  Luke's, 
and  declared  that  the  name  of  the  deceased  was  Heasman  —  the  name 
of  a  patient  who  had  recently  escaped  from  the  establishment.  The 
name  on  the  stockings  worn  by  deceased  corresponded  with  this 
statement.  On  the  following  day  the  brother  of  the  deceased  con- 
firmed the  physician's  view.  But  strong  evidence  was  produced  to 
the  effect  that  the  corpse  was  that  of  another  person.  An  engineer, 
who  had  lost  a  friend,  produced  a  photograph  very  like  the  deceased; 
and  another,  Mrs.  Mary  Ann  Banks,  positively  swore  that  the  body 
was  that  of  her  husband,  Mr.  Ebenezer  Charles  Banks,  a  commercial 
traveler.  She  adhered  to  this  statement  upon  oath  in  the  coroner's 
court,  her  two  sisters  partially  supported  her,  and  she  had  one  strong 
circumstance  in  favor  of  her  statement :  Before  she  had  seen  the 
body,  she  described  a  particular  wound  upon  the  little  finger,  which 
wound  appeared  to  have  been  found,  but,  notwithstanding  this  strong 
proof,  the  great  preponderance  of  evidence  was  that  the  body  was 
that  of  Heasman."* 

Photographic  view  of  premises  —  when  admissible. 

§  169.  The  rejection  of  a  photographic  view  of  premises,    the 
boundaries  of  which  are  in  dispute,  and  upon  which  a  trespass  is  al- 

*  To  the  above  is  a  note,  from  which  an  extract  may  be  in  place.  "  The  interest  felt  in  the  case 
an  interest  out  of  all  proportion  to  the  importance  of  the  facts,  reveals  a  curious  doubt  which 
is  always  latent  in  the  public  mind,  and  which  has,  we  suspect,  as  much  justification  as  popular 
instincts  usually  have,  a  doubt  whether  appearances  is  conclusive,  or  even  strong  evidence  of 
identity.  The  doubt  is  probably  based  upon  tradition,  which  deals  much  in  stories  of  mistaken 
identity,  but  we  are  inclined  to  believe  it  much  more  solid  than  either  policemen  or  artists  would 
be  willing  to  allow.  A  large  proportion  of  ordinary  persons,  it  may  be  even  a  majority,  but 
certainly  a  very  large  proportion,  are  very  untrustworthy  witnesses  to  identify  when  dependent 
on  appearances  alone.  Tney  are,  either  from  nature  or  habit,  incapable  of  appreciating  form, 
and  form  alone  is  the  unerring  proof  of  personal  identity.  The  difficulties  in  the  way  of  identi- 
fication, more  especially  of  the  dead,  are  to  them  insuperable.  In  the  first  place,  people  are 
much  more  similar  than  we  always  remember.  Without  excepting  or  disputing  the  extra- 
ordinary idea  which  exists  in  so  many  countries,  and  is  the  basis  of  so  many  fables,  that  every 
man  has  a  "  double  "  somewhere,  an  individual  absolutely  identical  in  appearance  with  himself, 
it  is  quite  certain  the  most  extraordinary  likenesses  do  exist  among  persons  wholly  disconnected 
in  blood;  that  there  are  faces  and  forms  in  the  world  which  are  rather  types  than  individuali- 
ties, people  so  like  one  another  that  only  the  most  intimate  friends  and  connections  can  detect 
the  difference.  The  likeness  of  Madam  Lamotte  to  Marie  Antoinette  is  a  well-known  historic  in- 
stance, and  there  are  few  persons  who  have  not,  in  the  course  of  their  own  experience,  met 
with  something  of  the  same  kind.  The  writer  has  twice.  In  one  case  he  was  on  board  a  ship 
in  which  were  two  persons,  who  neither  were,  nor  by  possibility  could  be,  connected  by  birth  or 
any  circumstance  whatever,  except  indeed  caste:  oddly  enough  they  were  unaware  of  a  likeness 
which  was  the  talk  of  the  ship,  dresswl  in  the  same  style,  but,  from  inexplicable  repulsion  —  we 
are  stating  mere  facts  —  disliked  and  avoided  each  other.  The  writer,  in  a  six  weeks'  voyage, 
and  with  a  tolerably  intimate  acquaintance  with  one  of  the  two,  never  succeeded  in  distinguish- 
ing them  by  sight:  and  of  the  remaining  passengers,  certainly  one  half,  say  thirty  educated  per- 
sons, were  in  the  same  predicament.  In  the  second  instance,  the  evidence  is  far  less  perfect, 
but  sufficient  for  the  argument  we  are  now  advocating.  Tho  writer  stopped  short  in  Bond 
street  utterly  puzzled  by  the  apparition  of  one  of  his  closest  connections,  not  two  yards  off, 
clearly  It  was  he,  yet  he  could,  from  circumstances,  by  no  possibility  be  there;  still  it  was  he, 
and  the  writer  advanced  to  address  him,  wh»-n  a  momentary  smile  broke  the  spell;  leaving,  how- 
ever, this  impression:  "  I  would  have  sworn  to  Illunk  in  any  court  of  justice;  bis  double  must 
be  walking  about  Bond  street."  And  hence  the  uncertainty  of  all  human  testimony  on  questions 
of  personal  identity. 


PHOTOGRAPHS.  Ill 

leged  to  have  been  committed  by  placing  rocks  and  rubbish  thereon 
furnishes  no  ground  of  exception,  if  the  same  is  offered  simply  as  a 
"  chalk  representation,"  without  being  verified  by  the  oath  of  the 
photographer,  although  the  evidence  of  other  persons  is  offered  to 
show  its  correctness.  The  rejection  of  the  photograph  was  held  to 
be  no  ground  for  exception,  as  it  was  not  verified.1  Where  an 
action  was  brought  against  a  city  for  damages  alleged  to  have  resulted 
from  a  change  made  by  the  city  in  the  grade  of  a  street,  after  the 
grade  had  been  established  by  the  city,  a  photograph  of  plaintiff's 
premises,  which  he  testified  was  as  perfect  as  could  be  taken,  was 
admitted  in  evidence  to  show  the  location  and  surroundings  of  the 
premises  and  improvements,  and  aid  the  jury  in  determining  how 
far  they  were  affected  by  the  change  made  in  the  grade  of  the  street. 
It  was  held -to  be  properly  admitted,  a  view  of  the  premises  by  the 
jury  being  impracticable.2  The  same  rule  we  find  held  in  a  New 
York  case,  where  an  action  was  brought  to  recover  damages  for  in- 
juries to  the  plaintiff's  premises.  The  photograph  of  the  premises 
went  in  evidence  to  the  jury  to  aid  them  in  understanding  the  case.3 
The  same  rule  was  held  in  Massachusetts  in  1875,  in  an  action 
against  a  town  for  damage  for  injuries  resulting  from  a  defect  in  the 
highway,  which  the  town  was  bound  to  keep  in  repair.  The  plain- 
tiff had  the  road  photographed  and  introduced  it  in  evidence ;  and 
that  was  no  error.4  This  is  the  practice  in  England,  where  it  was 
held  to  be  proper.  In  an  indictment  against  a  telegraph  company  for 
obstructing  a  public  highway,  which,  it  was  held,  amounted  to  a  public 
nuisance,  the  photograph  of  the  highway,  with  its  obstructions, 
was  properly  admitted  in  evidence.5  No  good  reason  is  perceived 
why  it  should  not  be  the  practice  in  these  cases  as  well  as  in  the 
proof  of  the  identity  of  persons  in  cases  of  homicide,  to  identify  the 
accused  or  the  deceased,  or  both,  or  in  cases  where  it  is  necessary  to 
identify  handwriting,  which  is  now  the  practice,  in  plea  of  non  est 
factum,  or  in  cases  of  forgery,  and  other  cases.* 

1  Hollenbeck     v.    Rowley,    8    Allen,         *  Cozzens  v.  Higgins,  3  Keyes,  206. 
473.  4  Blair  v.  Pelham,  118  Mass.  420. 

2  Church  v.  Milwaukee,  31  Wis.  512.          6  Reg.  v.  Tel.  Co.,   3  Fost.  &   P.  73. 

*In  Archer  v.  R.  Co.,  106  N.  T.  598  (1887),  the  action  was  brought  against  the  defendant  to 
recover  damages  for  an  injury  to  plaintiff  while  a  passenger  on  the  train.  A  photograph  was  in- 
troduced, showing  the  location  where  the  accident  occurred.  It  was  held  to  be  competent  evi- 
dence. The  plaintiff,  being  on  the  witness  stand,  was  asked  to  look  at  the  photograph  and  see  if 


'  there  was  not  sufficient  proof  of  the  point  from  or  the  time  at  which  the  photograph  was 
taken  to  entitle  it  to  be  submitted  to  the  jury  as  a  picture  of  the  premises  as  they  existed  at  the 
time  of  the  accident,'  being  general,  is  unavailing.''  Citing  Cowley's  case,  83  N.  Y  464  476  • 


112  THE  LAW  OF  IDENTIFICATION. 

Photograph  of  handwriting  —  plea  of  non  est  factum. 

§  170.  An  action  was  brought  in  Texas  against  an  administrator, 
in  which  there  was  a  plea  of  non  est  factum  interposed  against  the 
establishment  of  the  claim,  and  this  presented  a  question  of  identity 
of  handwriting,  and  the  photographic  copy  was  held  inadmissible 
in  evidence.  The  mere  fact  that  a  witness  whose  deposition  is 
offered  to  establish  a  plea  of  non  est  factum  is  a  resident  of  another 
State,  and  the  instrument  to  which  the  plea  applies  is  on  file  in  a 
Texas  court,  will  not  authorize  the  introduction  of  evidence  of  his 
opinion  of  the  handwriting,  based  on  a  photographic  copy  of  the  in- 
strument attached  to  the  interrogatories.1 

Photographic  copies  —  papers  withdrawn.  —  identity. 

§  171.  Where  an  action  was  brought  for  the  infringement  of  a 
copyright  of  a  play,  the  deposition  of  the  defendant  had  been 
taken  and  filed ;  annexed  to  it,  as  exhibits,  were  the  printed  program 
of  a  performance  at  a  theater  in  San  Francisco,  and  certain  slips  cut 
from  newspapers  published  at  that  place.  The  plaintiff  applied  for 
leave  to  withdraw  these  exhibits  from  the  files,  and  annex  them  to  a 
commission,  which  was  about  to  be  issued  in  the  cause,  for  the  exam, 
ination  of  witnesses  in  San  Francisco.  The  court  ordered  the  orig- 
inals of  printed  exhibits,  on  file  as  parts  of  the  deposition,  to  be  taken 
from  the  files  for  the  purpose  of  being  annexed  to  a  commission,  on 
condition  the  photographic  fac  simile  thereof  should  first  be  made 
and  placed  on  file  in  lieu  of  the  originals,  under  the  direction  of  the 
clerk.2 

In  1874  Lord  COLERIDGE,  the  chief  justice  of  the  Court  of  Common 
Pleas  of  England,  in  answer  to  an  application  to  withdraw  documents 
to  be  sent  out  to  Bombay,  to  have  identified  the  handwriting  of  some 
of  them,  said :  "  That  difficulty  might  be  got  over  by  taking  photo- 
graphic copies  of  them,  as  is  by  no  means  uncommon  in  the  present 

1  Eborn  v.  Zimpelman,  47  Tex.  503.          s  Daly  v.  Maguire,  6  Blatchf.  187. 

People  v.  Buddensieck,  103  N.  Y.  487.  In  Buddensieck's  case,  supra,  he  was  Indicted  for  man- 
slaughter, for  that  he  erected  a  building  in  the  city  of  New  York,  of  insufficient  material,  and 
by  reason  of  which  culpable  negligence,  the  same  fell  and  killed  Louis  Walters,  etc.  A  photo- 
graph of  the  premises  was  used  in  evidence  on  the  trial,  and  it  was  held  that  the  photograph 
was  properly  received  in  evidence  for  the  prosecution,  citing  Cozzens  v.  Higgins,  83  How.  Pr. 
439;  Cowley  v.  People,  83  N.  Y.  404;  Durst  v.  Masters,  1  Pro.  Div.  873,  378. 

In  Albert!  v.  R.  R.  Co.,  118  N.  Y.  77  (1889),  the  action  was  to  recover  damages  for  personal  in- 
juries received  while  a  passenger  on  a  sleeping  car.  On  the  trial  the  plaintiff's  counsel  offered  in 
evidence  a  photograph  of  the  plaintiff,  showing  the  manner  in  which  his  limbs  were  contracted; 
this  was  permitted  by  the  court,  under  objections  of  the  defendant;  before  it  was  done,  however, 
one  of  the  doctors  testified  that  the  photograph  was  taken  in  his  presence  and  that  it  correctly 
represented  the  contraction  of  the  limbs.  The  only  materiality  of  this  evidence  was  to  show 
the  manner  in  which  the  limbs  were  contracted .  It  was  held  that  the  testimony  of  the  physician 
made  It  competent  evidence  as  a  map  or  diagram.  Citing  Archer  v.  R.  R.  Co..  106  N.  Y.  589, 
603;  Wilcor  v.  Wllcox,  46  Hun,  82,  38;  Ruloff  v.  People,  45  N.  T.  213,  234  ;  Hynes  v.  Mc- 
Dermott,  82  id.  60. 


PHOTOGRAPHS.  113 

day."1  Thus  we  see  photography  in  use.  The  rule  of  law  requires 
the  best  evidence.  This  required  the  production  of  the  original  papers, 
in  all  cases  admitting  documentary  evidence  as  the  best  evidence  of 
its  genuineness.  But  now  the  photograph  of  the  original  is  recog- 
nized judicially  when  proved  to  be  correct ;  and  the  reason  of  the 
rule  having  ceased,  the  rule  itself  has  ceased,  and  much  difficulty  is 
obviated. 

Photograph  of  deceased  person  —  of  handwriting. 

§  172.  In  an  Indiana  case  decided  by  the  Supreme  Court  in  18T7, 
a  photograph  of  the  deceased  was  introduced,  to  which  exceptions 
were  taken.  The  court  said  :  "  The  court  below  allowed  a  certain 
photograph,  and  evidence  touching  it,  to  go  to  the  jury,  for  the  pur- 
pose of  identifying  the  deceased ;  evidence  touching  a  spot  on  the 
coat  of  the  prisoner,  supposed  to  be  a  blood  spot,  and  the  test  of  a 
physician  in  reference  to  the  same  spot ;  evidence  of  the  dodging, 
trembling  and  confusion,  when  met  by  witness  before  and  at  the 
time  of  the  arrest ;  evidence  of  a  witness  as  to  his  having  seen  a  man 
in  Ripley  county,  some  time  before  the  commission  of  the  crime, 
who  resembled  the  prisoner  ;  evidence  touching  a  satchel  and  its  con- 
tents, found  near  the  church  where  the  dead  body  was  found,  as  be- 
longing to  the  deceased ;  the  admission  of  all  of  which  the  prison- 
er's counsel  thinks  was  erroneous ;  but  with  careful  attention,  we 
can  see  no  error  in  these  rulings."2  In  a  Michigan  case  in  1876,  in- 
volving the  will  of  one  Alfred  Foster,  deceased,  it  was  held  that 
while  it  might  not  be  error  to  permit  photograph  copies  of  a  will 
which  was  in  controversy  to  be  given  to  the  jury,  with  such  precau- 
tions as  to  secure  their  identity  and  correctness,  yet  their  use  can 
never  be  compulsory,  and  their  rejection  cannot  be  urged  as  error. 
It  would  seem  to  be  error  to  reject  any  competent  evidence,  when  it 
is  shown  to  be  material.  But  in  this  case,  as  it  appears  from  the 
opinion  of  the  court  that  it  was  a  photograph  of  the  handwriting 
of  the  testator,  and  was  offered  to  be  used  in  comparison  with  a 
signature  shown  to  be  genuine,  it  was  refused  under  the  old  English 
rule  which  would  not  permit  the  comparison  of  handwriting  by  the 
jury  on  account  of  their  illiteracy. 

Photograph  of  handwriting  —  rule  in  Texas. 

§  173.  In  an  important  case  in  Texas,  decided  in  1877,  the  action 

1  Stephens,  Re,  8  Moak  Eng.Rep.  482.        3  Matter  of  Foster's  Will,  34  Mich.  21. 
9  Beavers  v.  State,  58  Ind.  530,  535. 

15 


114  THE  LAW  OF  IDENTIFICATION. 

was  brought  to  recover  money  on  two  instruments,  one  for  borrowed 
money,  $900,  and  one  for  money  placed  in  the  hands  of  the  obligor 
for  investment,  $6,500.  An  attempt  was  made  to  prove  the  hand- 
writing by  photograph.  It  was  there  held  that  photographic  copies 
of  instruments  sued  on  can  only  be  used  as  secondary  evidence ; 
like  letter-press  copies,  which  may  or  may  not  befac  similes  of  the 
originals,  it  is  a  question  of  fact,  whether  a  photographic  copy  of  a 
writing,  when  offered  in  evidence,  is  a  mathematically  exact  repro- 
duction of  the  original  writing.  And  that  the  mere  fact  that  a  wit- 
ness whose  deposition  is  offered  to  establish  a  plea  of  non  estfactum, 
is  a  resident  of  another  State,  and  the  instrument  to  which  the  plea 
applies  is  on  file  in  a  Texas  court,  will  not  authorize  the  introduction 
in  evidence  of  his  opinion  of  the  handwriting,  based  on  a  photo- 
graphic copy  of  the  instrument  which  was  attached  to  the  interroga- 
tories of  the  witness.1  In  this  case  the  Supreme  Court  said :  "  In 
support  of  the  admissibility  of  such  evidence,  it  is  contended  that 
the  court  will  take  judicial  notice  that  the  photographic  process  se- 
cures a  mathematically  exact  reproduction  of  the  original,  and  that, 
therefore,  evidence  as  to  the  handwriting  of  such  a  copy  is  as  satis- 
factory as  though  it  referred  to  the  original.  But  certainly  the  ex- 
actness of  a  photographic  copy  of  a  writing  depends  on  the  instru- 
ment and  materials  used.  Like  a  letter-press  copy,  it  is  a  copy,  and 
may  be  more  or  less  imperfect.  However  superior  to  other  copies, 
it  is  certainly  a  question  of  fact  whether  any  particular  photographic 
copy  is  exact  or  not,  for  photographers  do  not  always  produce  exact 
fac  similes" 

Same  —  rule  as  to  proof  of. 

§  174.  In  Udderzook's  case  in  Pennsylvania,  a  different  rule  seems 
to  have  been  held,  to  the  effect  that  the  photographic  likeness  was 
admissible  in  a  murder  case  to  prove  the  identity  of  the  deceased, 
without  producing  the  artist  to  show  that  it  was  taken  correctly.2 
It  does  not,  however,  seem  to  be  well  settled,  whether  or  not  the 
court  is  charged  with  judicial  notice  or  knowledge  of  the  science  in 
such  cases,  or  whether  it  is  necessary  to  prove  the  photograph  to  be 
correct  and  an  exact  copy,  in  order  to  its  admissibility.  Lord  COLE- 
RIDGE said :  "  It  comes  to  this,  whether  the  court  would  take  judicial 
cognizance  of  photographs,  as  an  established  means  of  producing  a 
correct  likeness.  This  the  court  could  not  refuse  to  do.  Its  common 

1  Eborn  v.  Zimpelman,  47  Tex.  503.  »  Udderzook  v.  Com.,  76  Pa.  St.  852. 


PHOTOGRAPHS.  115 

use,  the  length  of  time  the  process  has  been  known,  the  scientific 
principles  on  which  it  is  based,  all  combine  to  make  any  other  de- 
cision impossible."1* 

Test  of  genuine  handwriting  —  forgery. 

§  175.  The  art  of  photography  is  now  comparatively  new,  yet  is 
being  used  in  the  courts,  for  various  purposes,  as  evidence,  views, 
landscapes,  likenesses  of  persons  and  things,  or  copying  papers,  and 
detecting  counterfeits  and  proof  of  handwriting,  and  for  other  pur- 
poses. Mr.  Wharton  gives  the  following  from  the  Albany  Law 
Journal :  "  A  novel  application  of  the  art  of  photography  was  made 
in  a  case  on  trial  before  Mr.  Justice  DYKMAJST  in  the  Supreme  Court 
Circuit  of  New  York  city,  on  Friday,  June  2,  1876.  The  question 
at  issue  was,  whether  the  certification  of  a  check,  purporting  to  have 
been  made  by  the  teller  of  the  bank  on  which  it  was  drawn,  was 
genuine  or  a  forgery.  The  teller  swore  that  it  was  not  his  certificate, 
and  several  experts  pronounced  the  signature  a  forgery  ;  while  other 
experts,  called  by  the  holder  of  the  check,  were  equally  positive 
that  the  signature  was  genuine.  Thereupon  the  court-room  was 
darkened,  and  "  Professor  Combs,"  with  the  aid  of  a  calcium  light 
magic  lantern,  threw  an  image  from  a  photograph  negative  of  the 
check,  upon  the  wall,  to  show  that  the  writing  was  free  and  flowing, 
and  not  the  labored  and  retouched  signature,  which  is  the  usual  ac- 
companiment of  forgeries,  and  which  some  of  the  experts  insisted 
1  Re  Stephens,  8  Moak's  Eng.  Rep.  482.  See  L.  R.,  9  C.  P.  187. 

*In  Leathers  v.  Salvor  Wrecking  Co.,  2  Woods  C.  C.  680,  the  libel  was  filed  in  the  Court 
of  Admiralty,  to  recover  damages  for  wrecking  and  dismantling  the  steamboat  Natchez  which 
was  sunk  in  the  Yazoo  river.  BRADLEY,  J.,  said:  "  If  the  steamer  Natchez  was  impressed  into 
the  service  of  the  Confederate  States  government  and  was  burnt  and  sunk  whilst  in  that  service, 
and  if  full  compensation  for  the  vessel's  loss  was  paid  to  the  libelant  by  that  government  the 
property  of  the  wreck  thereafter  belonged  to  it;  and  at  the  close  of  the  war,  became  the  prop- 
erty of  the  government  of  the  United  States,  which  thereupon  acquired  a  right  to  dispose  of  the 
wreck  as  it  saw  fit.  It  is  evident  that  the  government  of  the  United  States  acted  on  the  supposition 
that  it  was  the  owner  of,  and  entitled  to  the  control  of,  the  wreck.  The  authority  given  to  the 
wreckers,  and  the  contract  made  with  them,  are  evidence  of  this.  The  latter  got  only  one-half 
of  the  net  proceeds  of  the  property.  The  balance  was  retained  by  the  government.  Without 
stopping  to  inquire  whether  thus  acting  under  the  authority  of  the  government  of  the  United 
States  would  or  would  not  be  a  full  defense  for  the  wreckers,  and  for  the  respondents  in  this 
suit,  it  is  clear,  from  the  evidence,  that  the  libelanfs  transactions  with  the  Confederate  States 
government  bear  out  the  hypothesis  that  he  obtained  therefrom  the  full  value  of  the  steamboat, 
and  that  whatever  was  left  of  her  hull  and  machinery  belonged  to  that  government,  and,  by 
consequence,  became  the  property  of  the  United  States.  The  libelant,  however,  testifies,  and  no 
doubt  sincerely,  that  the  amount  received  by  him  from  the  Confederate  government,  was  received 
as  compensation  for  the  services  of  the  steamboat.  But  a  long  period  of  tune  has  elapsed  since 
the  events  occurred;  and  an  examination  of  the  documents  themselves  is  conclusive  that  the 
said  amount  was  the  valuation  of  the  vessel  itself,  and  was  so  understood  by  the  libelant  at  the 
time,  and  received  by  him  as  such .  *  *  *  It  is  objected  by  counsel  for  the  libelant,  that  the 
documentary  evidence  in  question  is  not  properly  authenticated.  We  think  it  sufficiently 
authenticated  to  make  it  competent.  The  original  papers  are  on  file  in  the  war  department. 
*  Photographic  copies  are  the  best  evidence  the  case  admits  of.  The  wonderful  art  by 
which  they  were  produced  gives  us,  as  we  may  say,  duplicate  originals;  and  to  the  case  of  pub- 
lic records  or  documents  properly  deposited  in  the  public  archives  of  the  country,  and  which  the 
public  interest  requires  should  be  there  kept  and  preserved,  no  better  evidence  of  their  character 
and  authenticity  can  be  had  than  such  a  reproduction  of  them  by  the  operation  of  natural  agen- 
cies, and  the  authentication  of  their  genuineness  in  the  usual  way,  by  proof  of  handwriting/' 


116  THE  LAW  OF  IDENTIFICATION. 

appeared  in  this  case.    This  exhibit  seemed  to  have  the  desired  effect, 
as  the  jury  found  that  the  certificate  was  genuine.1 

Same  —  alleged  alteration  of  check. 

§  176.  Another  case  is  stated,  not  altogether  unlike  the  above,  to 
have  been  tried  in  the  Superior  Court  of  New  York  city  in  1876,  in 
the  case  of  Funcke  v.  The  New  York  Mutual  Life  Insurance  Com- 
pany. It  appears  that  a  question  arose,  and  the  main  question  in  the 
case,  as  to  whether  or  not  a  check  had  been  raised  from  $100  (one 
hundred  dollars)  to  $1,500  (fifteen  hundred  dollars).  The  alteration 
had  been  confessed  by  a  notorious  forger,  who  had  been  employed  to 
make  it,  but  who  was  then  under  sentence  for  another  offense. 
Photographs  were  exhibited  showing  decided  traces  of  the  original 
writing  ;  especially  of  the  word  "  one  "  under  the  newly- written 
word  "  fifteen."  It  was  objected  that  these  traces  of  the  original 
writing,  which  were  not  visible  on  the  check  itself,  were  also  in- 
visible on  some  of  the  photographs.  It  has  been  suggested  to  us  by 
President  Morton,  that  this  was  probably  due  to  a  too  long  exposure 
of  the  negatives  not  showing  the  traces.  The  ink,  which  had  been 
obliterated  by  the  use  of  dilute  sulphuric  acid,  hypocbloride  of  soda 
(laboraquis  solution)  had  left  only  a  very  faint  trace  of  oxide  of  iron, 
which,  by  reason  of  its  yellow  color,  would  have  a  special  absorbing 
power  for  the  actinic  or  photographic  rays ;  but  yet  even  in  this  re- 
gard the  difference  between  this  remnant  of  the  ink  and  the  white 
paper  was  very  slight,  and  if  the  exposure  was  at  all  too  long,  even 
the  yellow  traces  reflected  light  enough  to  render  the  negative  opaque. 
It  was,  therefore,  necessary  thai  just  time  enough  should  be  given  to 
allow  the  white  paper  to  produce  its  effect,  when  slightly  yellow 
parts  would  be  distinguishable  by  their  inferior  action.2 

Same  —  another  use  —  examining  bread. 

§  177.  Another  important  use  of  the  art  of  photography,  show- 
ing its  practical  utility  in  matters  in  litigation,  was  demonstrated  in 
an  action  brought  by  the  Rumford  Chemical  Works  against  one 
Hecker,  for  infringement  of  a  patent.  Beyond  what  appears  in  the 
official  report  of  the  case,  Mr.  Wharton  acknowledges  the  receipt 
from  a  scientist,  of  the  following,  illustrating  a  further  use  of  photo- 
graphs in  the  production  of  evidence,  to- wit :  "  In  the  case  of  Rumford 
Chemical  Works  v.  Hecker ,  11  Blatchf.  552,  the  question  was  raised 

1  Whart.  Cr.  Ev.  (8th  ed.),  §  545,  note;  »  Whart.  Cr.  Ev.  (8th  ed.),§  544,  note, 
from  13  Alb.  L.  J.  407. 


PHOTOGRAPHS.  117 

as  to  the  relative  porosity  of  bread  made  with  yeast  in  the  usual  man- 
ner and  that  prepared  with  the  baking  powder  of  the  complainants. 
Evidence  was  introduced  by  defendants  as  follows : '  President  Henry 
Morton  of  the  Stevens  Institute  of  Technology,  Hoboken,  N.  J.,  who 
organized  the  photographic  observations  of  the  eclipse  of  7th  of 
August,  1869,  under  the  Nautical  Almanac  Office,  and  otherwise  an 
expert  in  photography,  was  produced  and  deposed  to  having  prepared 
sections  of  both  varieties  of  bread  of  exactly  equal  thickness,  and  to 
having  made  microscopic  or  highly  enlarged  photographs  of  the 
same,  under  the  same  conditions,  and  these  were  filed  in  court  as  ex- 
hibits.8* 

Land  grant  —  signature  —  photograph  copy. 

§  178.  A  grant  of  land  in  California  purporting  to  have  been  made 
to  one  Jose  de  la  Rosa,  dated  December  4,  1845,  and  purporting  to 
be  signed  by  Pio  Pico,  as  acting  governor,  and  countersigned  by 
Jose  Maria  Covarrubias,  secretary,  was  adjudged  to  be  false  and 
forged.  The  court  said :  "  We  have  ourselves  been  able  to  compare 
these  signatures  by  means  of  photographic  copies,  and  fully  concur 
from  evidence  subjecta  fidelibus,  that  the  seal  and  the  signature  of 
Pico  on  this  instrument  are  forgeries  ;  and  we  are  more  confirmed 
in  this  opinion  by  the  testimony  of  Pico  himself  found  in  the  record. 
In  a  brief  affidavit,  made  on  the  9th  day  of  June,  1853,  he  swore, 
without  hesitation,  that  the  document  bearing  date  December  4, 1845, 
was  signed  by  him.  But  in  the  deposition  in  this  cause,  on  27th  day 
of  February,  1857,  while  this  issue  was  pending,  he  appears  to  testify 
with  very  great  caution.  He  seems  to  have  drawn  out  a  certain  for- 
mula of  words,  on  which  it  is  clear  that  a  conviction  of  perjury 
could  not  be  sustained,  whether  his  testimony  was  true  or  false.  The 

8  Whart.  Cr.  Ev.  (8th  ed.),  §  544,  note. 

*  Mr.  Wills  in  his  work  on  Circumstantial  Evidence,  at  page  118,  says :  "  A  case  of  capital  con- 
viction occurred  a  few  years  ago,  where  the  prisoner  had  given  his  portrait  to  a  youth,  which  en- 
abled the  police,  after  watching  a  month  in  London,  to  recognize  and  apprehend  him;  and 
photographic  likenesses  now  frequently  lead  to  the  identification  of  offenders.  It  is  well  known 
that  snepherds  readily  identify  their  sheep,  however  intermingled  with  others;  and  offenders 
are  not  unfrequently  recognized  by  their  voice,  circumstances  frequently  contribute  to  identifi- 
cation, by  confirming  suspicion  and  limiting  the  range  of  inquiry  to  a  class  of  persons;  as  where 
crimes  have  been  committed  by  left-handed  persons;  or  where,  notwithstanding  simulated  ap- 
pearances of  external  violence  and  infraction,  the  offenders  must  have  been  domestics;  as  in  the 
case  mentioned  on  a  former  page,  of  two  persons  convicted  of  murder,  one  created  an  alarm 
from  within  the  house;  but  upon  whom  nevertheless  suspicion  fell,  from  the  circumstance  that 
the  dew  on  the  grass  surrounding  the  house  had  not  been  disturbed  on  the  morning  of  the  mur- 
der, which  must  have  been  the  case  had  it  been  committed  by  any  other  than  inmates.  On  the 
trial  of  a  gentleman's  valet  for  the  murder  of  his  master,  it  appeared  that  there  were  marks  on 
the  back  door  of  the  house,  as  if  it  had  been  broken  into,  but  the  force  had  been  applied  from 
within,  and  the  only  way  by  which  this  door  could  be  approached  from  the  back  was  over  a 
wall,  covered  with  dust  which  lay  undisturbed;  and  over  some  tiling,  so  old  and  perished  that 
it  would  not  have  borne  the  weight  of  a  man:  so  that  the  appearances  of  burglarious  entry 
must  have  been  contrived  by  a  domestic,  and  other  facts  conclusively  fixed  the  prisoner  as  the 
murderer." 


118  THE  LAW  OF  IDENTIFICATION. 

answer  is  in  these  words,  and  three  times  repeated  in  the  very  same 
words,  I  cannot  now  remember,  in  regard  to  the  original  document 
mentioned  in  the  interrogatory,  but  the  signature,  as  appears  in  the 
traced  copy,  appears  to  be  my  signature,  and  I  believe  it  was  placed 
there  by  me  at  the  time  the  document  bears  date."1 

1  Luco  v.  United  States,  23  How.  515.     And  see  the  noted  Howland  Will  case, 
4  Am.  Law  Rev.  625. 


OHAPTEE  VI. 


OPINION  EVIDENCE. 


SEC.  SEC. 

179.  Rule  as  to  experts  —  exceptions —    204. 

opinions  of  witnesses. 

180.  Instances  of  exceptions  —  formerly    205. 

limited.  206. 

181.  Same — additional  instances — opin-    207. 

ion.  208. 

182.  Identity  —  non-experts  —  opinion 

as  evidence.  209. 

183.  Identity  of  persons  and  things.  210. 

184.  Proof  of  identity  —  rule  of  evi-    211. 

dence. 

185.  Non-expert  —  opinion  —  publica-    212. 

tion — insurance.  213. 

186.  Same — same  —  railroad  accident —    214. 

damages. 

187.  Same  —  same  —  ditch  —  effect  of  —    215. 

clothing  described. 

188.  Trespass  —  breach  —  opinion  of    216. 

witnesses. 

189.  Personal  identity  —  opinion  of  wit-    217. 

nesses.  218. 

190.  Non-expert  —  disease  of  slaves. 

191.  Same  —  injuries  —  rule  in  Kansas.     219. 

192.  Same  —  rule  in  New  Hampshire    220. 

and  Indiana. 

193.  Same  —  murder  —  assault  and  bat-    221. 

tery. 

194.  Same  —  damages  —  values  —  rule    222. 

in  Indiana. 

195.  Same  —  general  rule  in  given  cases.    223. 

196.  Same  —  railroad  —  damages  —  in-    224. 

fancy.  225. 

197.  Same  —  rule  in  Massachusetts  and 

Connecticut.  226. 

198.  Same  —  rule  as  to  water-power  — 

photography.  227. 

199.  Opinion  —  murder  —  blood  spots.     228. 

200.  Same  —  sanity  of  testator  —  rule  in 

Massachusetts.  229. 

201.  Non-expert  —  rule  in  Indiana.  230. 

202.  Same  —  sidewalk  —  rule  in  Illinois.    231. 

203.  Same  —  rule   in   New    Hampshire 

and  Connecticut. 


Non-expert  witness — rule  in  Ver- 
mont. 

Same  —  rule  on  the  subject. 

Opinion  —  as  to  the  value  of  a  gun. 

Same  —  as  to  the  value  of  a  dog. 

Opinion  of  temperature  —  heat  or 
cold. 

Same  —  instances  —  caution. 

Opinion  —  value  of  real  property. 

Opinion  of  witnesses  —  covenant  — 
trespass. 

Witness — opinion  of  the  horse. 

Same  —  same  —  rule  in  Iowa. 

Opinion  as  to  the  capacity  of  a 
sewer. 

Same  —  sickness  —  soundness  of  a 
slave. 

Opinion  —  breach  of  marriage  con- 
tract. 

Same  —  larceny  —  wagon  tracks. 

Same  —  murder  —  rule  in  Massa- 
chusetts. 

Same  —  rule  in  Tennessee. 

Opinion  testimony  —  rule  in  several 
States. 

Same  —  collision  —  vessel  —  dis- 
tance. 

Same  —  rule  in  Massachusetts  and 
New  York. 

Weight  of  opinion  evidence  —  rule. 

Same  —  rule  in  Kansas. 

Opinion  —  value  of  personalty  — 
damages. 

Human  identity  —  opinion  of  wit- 
nesses. 

Opinion  as  to  sanity  —  intoxication. 

Intoxication  —  witnesses'  opinion 
as  to  —  murder. 

Same  —  when  opinion  admissible . 

Murder — shooting — opinion. 

Opinion  —  circumstantial  evidence 
—  identity. 


Rule  as  to  experts  —  exceptions  —  opinions  of  witnesses. 

§  179.  While  it  is  true,  as  a  general  rule,  that  no  witness  is  per- 
mitted to  give  an  opinion  unless  he  is  shown  to  be  an  expert,  yet, 
there  are  many  exceptions  to  this  rule,  which  are  DOW  as  well  un- 


120  THE  LAW  OF  IDENTIFICATION. 

derstood,  appreciated  and  recognized  as  the  rule  itself,  chief  among 
which  are  matters  in  evidence  tending  to  prove  identification.  Many 
other  matters  in  the  law  of  evidence  fall  within  the  exception,  as  we 
shall  see,  a  few  of  which  have  been  en  umerated  by  the  law  writers 
on  this  subject,  and  which  are  not,  perhaps,  directly  connected  with 
the  purpose  of  this  treatise,  yet,  so  interwoven  with  it  that  it  has 
been  deemed  proper,  in  order  to  draw  the  distinction,  which  is  held  to 
exist  between  expert  evidence,  proper,  and  that  of  opinion  evidence 
by  non-experts,  to  give  a  few  instances  in  which  the  non-expert  wit- 
ness may  express  an  opinion,  and  this  will  be  done  at  the  hazard  of 
a  censure  for  digression.  There  are,  as  we  shall  see,  many  matters 
in  which  a  witness  cannot  state  the  facts,  and  inform  the  jury  with- 
out expressing  an  opinion.  And  hence  the  convenience  and  the 
necessity  of  many  of  these  exceptions  to  that  general  rule.  Then 
the  great  difficulty  of  distinguishing  between  (in  many  cases)  the 
statement  of  a  fact  and  the  expression  of  an  opinion.  And,  as  we 
shall  also  see,  it  is  difficult,  if  not  impossible,  to  lay  down  any  general 
rule  for  the  application  of  the  various  exceptions  which  arise,  that  it 
seems  proper,  at  this  point,  as  if  in  parenthesis,  to  introduce,  or 
rather  to  inject  here,  a  few  of  those  well-known  exceptions. 

Instances  of  exceptions  —  formerly  limited. 

§  180.  Some  of  the  exceptions  above  referred  to  were  very  prop- 
erly stated  by  Mr.  Greenleaf,  at  the  time  he  wrote,  when  he  said : 
"  Non-experts  may  give  their  opinions  on  questions  of  identity,  re- 
semblance, apparent  condition  of  body  or  mind,  intoxication,  in- 
sanity, sickness,  value,  conduct,  and  bearing,  whether  friendly  or 
hostile,  and  the  like."  This,  true  as  far  as  it  then  went,  at  that 
time,  did  not  more  than  approximate  the  various  matters  which  come 
within  the  recognized  exceptions  at  the  present  day.  We  may  now 
add,  not  concisely,  but  an  incomplete  list  of  other  matters  in  which 
witnesses,  though  not  experts,  may  give  their  opinions.  But  it  must 
be  observed  in  those  cases  (as  in  the  case  of  an  expert,  except  where 
he  testified  upon  given  facts)  that  the  opinion  must  be  given  in  con- 
nection with,  or  based  upon,  facts  stated  by  the  witness.  The  court 
and  jury  have  a  right  to  know  the  reason  for  the  opinion,  that  they 
may  know  what  weight  to  give  it.  And  it  is  no  less  true  in  the  case 
of  the  expert  whose  testimony  decides  nothing,  but  merely  furnishes 
additional  facts  for  the  consideration  of  the  jury.  And  often  his 
testimony  needs  support,  when  too  feeble  and  decrepid  to  stand  alone. 


OPINION  EVIDENCE.  121 

In  a  case  of  nuisance,  it  requires  not  the  skill  and  science  of  an  ex- 
pert to  give  an  opinion  of  the  effect  upon  the  air  of  the  poisonous 
effluvia  which  arises  from  a  pig-sty  or  a  privy.  A  non-expert  may 
testify  as  to  the  identity  (in  a  case  of  murder)  of  the  accused  and  the 
deceased  ;  as  to  the  identity  of  a  pamphlet,  in  case  of  slander ;  as  to 
dangers  of  fire  insurance ;  as  to  dangers  in  a  railroad  car  ;  as  to  bene- 
fit to  result  from  the  construction  of  a  ditch ;  as  to  comparison  of 
footprints ;  as  to  the  agility  and  power  of  fish  to  resist  the  ascent  of 
a  stream  ;  as  to  the  health  of  a  slave  ;  as  was  held. 

Same  —  additional  instances  —  opinion. 

§  181.  It  lias  also  been  held  that  a  non-expert  witness  may  give 
his  opinion  as  to  a  defect  in  a  street-crossing  ;  of  a  teamster  as  to  the 
value  of  horses,  harness  and  wagon  ;  in  a  case  of  damages  for  per- 
sonal injuries,  as  to  the  physical  condition,  before  and  after  the  in- 
jury ;  in  assault  and  battery,  as  to  pain,  suffering  and  loss  of 
health  ;  as  to  the  sanity  or  insanity  of  an  accused  party ;  as  to  the 
value  of  services  rendered  and  commodities  sold  and  delivered ;  as 
to  the  age  of  a  person,  from  his  personal  appearance ;  whether  a  two- 
horse  wagon  could  turn  in  a  given  space ;  as  to  color  of  liquor ;  as 
to  the  sufficiency  of  a  dam  on  a  stream  ;  as  to  whether  a  photograph 
was  a  good  likeness ;  in  a  case  of  murder,  as  to  blood  spots  on  a  stone ; 
as  to  sanity,  in  a  will  case  ;  as  to  the  value  of  a  gun;  as  to  the  value 
of  a  dog.  These  are  but  a  few  of  the  known  exceptions,  and  which 
will  be  considered  in  detail,  as  we  proceed.  A  further  enumeration, 
which  might  be  made,  if  further  space  was  allowed  for  this  digres- 
'  sion,  might  induce  the  belief  that  the  exceptions  had  become  the 
rule.  But  great  care  should  be  ever  taken  to  instruct  the  jury  as  to 
the  effect  of  either  expert  or  opinion  evidence ;  either  of  these  are 
mere  opinions,  based  or  founded  upon  facts,  and  the  jury  have  a  right 
to  know  the  facts,  for,  generally,  if  the  non-expert  is  not  acquainted 
with  the  facts,  he  is  not  entitled  to  express  an  opinion.  But,  as  to 
the  effect,  the  jury  are  not  bound  by  the  opinion ;  they  may  not 
have  confidence  in  it ;  when  they  have  both  the  opinion  and  the 
facts,  they  may  form  a  different  opinion,  and  act  upon  it,  and  they 
are  not  precluded  by  it,  from  acting  upon  their  own  judgment  as  to 
the  facts  and  circumstances.  They  have  the  right  to  weigh  the 
opinion  as  other  evidence,  and  disregard  it  if  it  have  no  weight. 

Identity  —  non-experts  —  opinions  as  evidence. 

§  182.  To  prove  identity  non-experts  may  often  give  their  opinions 
16 


122  THE  LAW  OF  IDENTIFICATION. 

as  evidence,  this  being  one  of  the  exceptions  to  the  rule  prohibiting 
it.  So  where  the  plaintiff  brought  action  on  the  case  for  a  nuisance, 
for  keeping  a  privy  and  pig-sty  so  near  plaintiff's  residence  as  to  be 
a  nuisance,  it  was  held  that  witnesses  who  had  examined  the  prem- 
ises, and  was  acquainted  with  them  by  personal  observance,  and  with 
the  effect  upon  the  air  in  such  cases,  might  properly  testify,  in  con- 
nection with  the  facts,  to  their  opinions,  founded  on  the  facts,  that 
the  effluvia  from  the  privy  or  sty  must  necessarily  render  the  plain- 
tiff's house  uncomfortable  as  a  place  of  abode.1* 

Identity  of  persons  and  things. 

§  183.  "  To  identify  a  person  or  thing  is  to  show  that  he,  or  it,  is 
the  person  or  thing  in  question.  Thus,  in  an  inquest  or  trial  for 
murder,  the  first  thing  is  to  identify  the  deceased ;  i.  0.,  prove  who  he 
was.  So  in  investigating  the  title  of  land,  the  purchaser,  in  the  ab- 
sence of  a  stipulation  to  the  contrary,  is  entitled  to  proof  of  the 
identity  of  the  land  described  in  the  title  deeds,  with  that  which  he 
has  contracted  to  purchase."2  "  In  cases  of  larceny,  trover,  replevin, 
the  things  must  be  identified.  So,  too,  the  identity  of  the  articles 
taken  or  injured  must  be  proved  in  all  indictments,  where  the  tak- 
ing of  property  is  the  gist  of  the  offense,  and  in  actions  of  tort  for 
damages,  to  specific  damages,  or  property.  Many  other  cases  occur 
in  which  identity  must  be  proved  in  regard  either  to  persons  or 
things.  The  question  is  sometimes  one  of  great  practical  difficulty, 
as  in  case  of  the  death  of  strangers,  reappearance  after  long  absence, 
and  the  like."3 

Proof  of  identity  —  rule  of  evidence. 

§  184.  The  identity  of  persons  or  things  is  a  fact,  to  be  proved  like 

1  Kearney  r.  Farrell,  28  Conn.  817.  'Bouvier  Law  Diet.,  title  Identity. 

» Rapalje  &  L.  Law  Diet.  623. 

•  In  Bennett  v.  Meehan,  83  Ind.  569,  ELLIOTT  J.,  said:  "There  is  another  class  of  cases  in 
which  a  non  -expert  witness,  familiar  with  the  facts,  may  state  his  opinion  to  the  jury."    Whar- 

"    § 


>y  Stephens  in  Stephens1  Ev.  103:  "Many 

cases  illustrate  this  rule.  Thus,  a  witness  may  state  his  opinion  of  a  culvert;  City  of  Indian- 
apolis v.  Huffer,  30  Ind.  235;  Lund  v.  Tyngsborough,  9  Cush.  Sti;  that  a  horse  is  gentle ;  Sydlemau 
v.  Beckwith.  43  Conn.  9;  that  a  certain  substance  is  '  hard  pan;'  Currier  v.  Boston,  etc.,  Ry. 
Co.,  34  N.  H.  498;  that  a  highway  is  in  good  repair,  or  that  it  is  out  of  repair;  Alexander  v. 
Town  of  Mt.  Sterling.  71  111.  866;  Clinton  v.  Howard,  42  Conn.  294;  that  a  certain  liquid  was 
whisky;  Commonwealth  v.  Dowdlcan,  114  Mass.  257;  that  a  train  was  running  at  a  special  rate 
of  speed;  State  v.  Folwell,  H  Kans.  105;  Commonwealth  v.  Malone,  114  Mass.  295;  that  the 
weather  was  cold  enough  to  freeze  potatoes;  Curtis  v.  Chicago,  18  Wis.  312.  In  Porter  v.  Pe- 
quonnoc,  etc.,  Co.,  17  Conn.  249,  a  non-expert  witness,  acquainted  with  the  facts,  was  permitted 
to  give  an  opinion  as  to  the  sufficiency  of  a  dam,  the  court  saying:  '  It  was  a  question  of  com- 
mon sense,  as  well  as  of  science.'  Other  casos  Illustrating  the  general  doctrine  are  collected  by 
the  author  first  cited,  as  well  ashy  Mr.  Best  In  hi*  work  on  Evidence.  Best  Ev.  657.  And  to 
these  we  may  add,  Barnes  v.  Ingall8,8»  Ala.  HW;  Mom*  v.  State,  6  Conn.  9;  McKonkey  v.  Gay- 
lord,  1  Jones  L.  94;  Cunningham  v.  Hudson  Hivur  I  tank,  21  Wend.  667." 


OPINION  EVIDENCE.  123 

other  facts  before  a  jury,  and  may  be  proved  by  any  of  the  various 
means  known  to  the  law  of  evidence,  whether  in  a  general  or  special 
way,  and  whether  by  expert  testimony,  by  comparison,  or  by  circum- 
stantial evidence;  and  often  where  the  more  rigid  rules  of  the  law  of 
evidence  are  relaxed,  more  flexible,  more  liberal,  when  the  issue  pre- 
sents a  question  of  disputed  or  doubtful  identity.  These  cases,  in- 
deed, often  form  an  exception  to  the  general  and  well-recognized 
rules  of  evidence.  The  necessity  for  a  relaxation  of  these  rules  grows 
out  of  the  extreme  difficulty  which  arises  in  making  the  proof,  and 
especially  is  this  true  in  criminal  practice ;  take,  for  instance,  a  case  of 
homicide ;  the  first  step,  of  course,  is  to  prove  the  corpus  delicti  and 
the  venue ;  the  next,  and  no  less  important,  step  is  the  identity  of 
both  the  deceased  and  the  accused  ;  and  unless  the  identification  is 
clear  and  beyond  a  reasonable  doubt,  the  prosecution  must  fail.  And 
this  often  presents  difficult,  serious  and  grave  consideration.  And 
the  numerous  reported  cases  of  mistaken  identity  admonish  the 
courts  and  juries  to  weigh  circumstances  tending  to  establish  identity, 
with  abundant  caution.  For  mere  circumstances  to  be  vested  with 
the  force  of  truth  or  conclusiveness,  they  must  exclude  every  other 
hypothesis,  and  generate  fall  belief.  It  is  then,  and  only  then,  that 
they  inspire  full  confidence. 

Non-experts  —  opinion  —  publication  —  insurance. 

§  185.  To  make  proof  of  the  publication  of  a  libelous  pamphlet  in 
an  action  to  recover  damages,  a  witness  testified  that  she  received 
from  the  defendant  in  the  action,  a  copy  of  a  pamphlet,  of  which  she 
read  some  portions,  and  loaned  it  to  several  persons  successively, 
who  returned  it  to  her,  and  though  there  were  no  marks  by  which 
he  could  identity  it,  she  'believed  that  the  one  produced  was  the  same 
pamphlet,  but  could  not  testify  positively  that  it  was.  This  was  held 
to  be  sufficient  evidence  of  publication  to  go  to  the  jury.1  In  an  ac- 
tion to  recover  a  loss  on  a  policy  of  fire  insurance,  the  tenant  of  the 
premises  insured,  who  had  charge  of  all  the  business  thereon, 
and  knew  all  of  its  details  and  processes,  was  produced  as  a  witness, 
and  asked  if  the  business  he  was  carrying  on  at  the  time  of  the  fire, 
was  any  more  hazardous  to  the  insurance  than  the  manufacture  of  toys. 
The  court  of  Vermont  held  that  the  answer  to  this  question  was  ad- 
missible in  evidence.2 

'Fryer  v.  Gathercole,   4  Erch.  262;        2  Brink  v.  Ins.  Co.,  49  Vt.  442. 
13  Jur.  542. 


124  THE  LAW  OF  IDENTIFICATION. 

Same  —  same  —  railroad  accident  —  damages. 

§  186.  In  a  recent  case  in  New  York,  where  the  action  was  brought 
against  a  railroad  company  to  recover  damages  for  an  injury  to  plain- 
tiffs arm  on  defendant's  car,  by  the  alleged  negligence  of  the  com- 
pany, a  witness  was  introduced  by  the  plaintiff,  who,  after  describ- 
ing the  position  of  the  plaintiffs  elbow  upon  the  window  sill  of  the 
car,  added :  "  I  should  judge  that  it  could  not  project  out  of  the 
window  by  the  position  that  he  held  it  in  the  car ; "  also  that  "  it 
could  not  be  out  of  the  car."  Upon  exceptions  to  this  evidence,  the 
court  held  that  the  testimony  was  competent ;  that  it  was  not  merely 
an  opinion,  but  a  statement  of  facts,  without  a  positive  allegation  as 
to  its  accuracy  ;  but,  even  if  regarded  as  an  opinion,  as  it  was  being 
based  upon  personal  knowledge  of  the  facts,  it  was  competent.  An- 
other witness,  who  said  he  heard  a  rattling  noise  on  the  outside  of 
the  car,  was  asked  and  permitted  to  answer,  under  the  objections  and 
exceptions  of  the  defendant,  "  Did  you  discover  any  confusion  among 
the  passengers  by  the  noise  on  the  outside  of  the  car?"  And  this 
was  held  competent  as  a  part  of  the  res  gestce.1  These  are  some  of 
the  exceptions  to  the  general  rule,  which  excludes  the  opinion  of 
non-expert  witnesses  from  the  consideration  of  the  jury.  But 
whether  such  opinion  be  competent  or  incompetent  must  depend 
generally,  and  perhaps  always,  upon  the  nature  of  the  facts  upon 
which  the  witness  bases  his  opinion. 

Same  —  same  —  ditch  —  eflect  of —  clothing  described. 

§  187.  On  the  trial  of  a  proceeding  to  establish  a  ditch,  the  cause 
was  appealed  to  the  Circuit  Court  and  on  the  trial  it  was  held  proper 
to  allow  a  witness,  who  had  stated  in  detail  the  number  of  acres  of 
land  in  the  vicinity  of  the  ditch,  and  who  had  given  its  size  and 
location,  to  testify  as  to  how  many  acres  of  land  would  be  benefited 
by  its  construction.  It  was  also  held  proper  for  this  witness  to  state 
what  effect,  if  any,  the  drainage  of  the  wet  land  would  have  upon 
the  health  of  the  community.2  Upon  the  trial  in  Massachusetts,  of 
an  indictment  for  the  crime  against  nature,  the  court  permitted  a 
witness  who  saw  the  clothes  of  tfie  defendant  at  the  time  in  question, 
to  testify  to  spots  and  stains  on  them,  without  producing  the  clothes, 
or  showing  any  reason  for  not  producing,  and  also  to  testify  that  he 
examined  the  boots  of  the  defendant,  and  footprints  near  the  place 

1  Hallahan  v.  Railroad  Co.,  102  N.  Y.          »  Bennett  v.  Meehan,  83  Ind.  566. 
191 


'OPINION  EVIDENCE.  125 

where  the  crime  was  committed,  and  thought  that  the  boots  would 
fit  the  footprints  and  were  of  the  same  size.1  It  is  in  very  many 
cases  not  necessary  that  a  witness  should  be  an  expert  to  render  him 
competent  as  a  witness  to  testify  his  opinion  to  the  jury.  In  the 
above  case,  this  question  was  fairly  presented,  as  to  the  identity  of  the 
clothes,  the  boot  and  the  footprints ;  and  on  this  point  the  court  re- 
marked that  "  whenever  evidence  of  the  condition  of  clothes  or 
other  articles  of  personalty  is  competent  and  material,  their  condi- 
tion may  be  described  by  witnesses,  without  producing  them  in  court 
themselves.  The  correspondence  between  boots  and  footprints  is  a 
matter  requiring  no  peculiar  knowledge  to  judge  of,  and  as  to 
which  any  person  who  has  seen  both  may  testify."  The  general 
rule  is  well  recognized  and  admitted  to  be,  that  witnesses  are  not 
permitted  to  testify  their  opinion  to  the  jury,  unless  they  are  experts. 
But  there  is  an  exception  to  this  rule,  which  seems  to  be  as  well  set- 
tled now  as  the  rule  itself.  There  are  many  subjects  upon  which  an 
opinion  must  be  derived  from  a  series  of  circumstances  and  instances 
coming  under  the  observation  of  the  witnesses,  which  they  could 
never  detail  to  the  jury.2  This  is  the  true  reason  of  the  exception  to 
the  general  rule,  and  it  was  well  said  :  "  It  is  because  witnesses  have 
a  knowledge  of  the  thing  about  which  they  speak,  and  have  acquired 
that  knowledge  in  a  manner  which  cannot  be  communicated,  or  from 
facts  incapable,  in  their  nature,  of  being  explained  to  others,  that 
they  may  state  what  they  know  in  the  best  way  they  can.  This  best 
way  is  by  giving,  in  the  form  of  an  opinion,  that  which  cannot  be 
put  in  the  form  of  explanation  or  narrative."3 

Trespass  —  breach.  —  opinion  of  witnesses. 

§  188.  An  action  of  trespass  was  brought  against  a  defendant 
in  Maine  for  breaking  plaintiff's  close,  and  treading  down  his  grass 
and  destroying  a  dam.  It  was  held  that  an  opinion  of  a  person  ac- 
customed to  witness  the  agility  and  power  of  certain  fish,  in  over- 
coming obstructions  in  the  ascent  of  rivers,  and  who  have  acquired, 
from  observation,  superior  knowledge  upon  that  subject,  are  admis- 
sible in  evidence  to  show  that  a  stream  in  its  natural  state  would  or 
would  not  be  ascendible  by  such  fish.4  Another  breach  in  the 
same  State  was  that  of  a  marriage  contract.  And  in  an  action  to  re- 
cover damages  for  a  breach  of  promise  of  marriage;  the  opinion  of 

1  Com.  v.  Pope,  103  Mass.  440.  3  Cooper  v.  State,  23  Tex.  339. 

2  M'Kee  v.  Nelson,  4  Cow.  355.  4  Cottrill  v.  Myrick,  3  Fairf .  (Me.)  222. 


126  THE  LAW  OF  IDENTIFICATION. 

witnesses  not  possessing  any  peculiar  professional  skill,  that  the 
plaintiff  was  once  in  a-state  of  pregnancy,  was  held  to  be  inadmissi- 
ble. Evidence  also  to  the  effect  that  it  was  once  reputed  that  she 
was  pregnant  at  one  time,  and  attempted  to  effect  an  abortion,  was 
held  to  be  inadmissible.  And  the  plaintiff  recovered  a  verdict 
against  the  defendant  for  $1,200,  which  was  affirmed.1  An  action 
was  brought  for  damages  for  slanderous  words  spoken,  charging  the 
plaintiff  with  fornication  and  adultery.  The  evidence  tending  to  show 
that  the  words  spoken  were  true,  or  that  there  were  reports  in  cir- 
culation, of  particular  instances  of  impropriety  of  the  plaintiff's  con- 
duct, will  not  be  admitted,  it  was  held  to  show  that  the  defendant 
believed  that  what  he  said  was  true.2 

Personal  identity  —  opinion  of  witnesses  —  name  —  identity. 

§  189.  In  a  recent  California  case,  one  Frank  Rolfe  was  convicted 
for  robbery  of  several  hundred  dollars  in  gold  and  silver  coin.  On 
the  trial  of  the  case,  a  certified  copy  of  a  former  conviction  for  an- 
other offense  in  another  county  was  admitted  in  evidence.  It  was 
insisted  that  there  was  not  sufficient  evidence  to  show  that  the  de- 
fendant Frank  H.  Rolfe  was  the  same  party  who  was  convicted 
under  the  name  of  "  Frank  Rollins  "  in  the  other  county.  The  court 
said  :  "  Identity  of  person  is  presumed  from  identity  of  name  ;  there 
were  other  circumstances  in  the  case  which  tended  to  establish  the 
fact  that  Frank  H.  Rolfe  was  the  same  person  convicted  in  the  other 
county  under  the  name  of  "  Frank  H.  Rollins ;  "  otherwise  of  course 
this  would  have  been  insufficient.3  In  a  New  Hampshire  case  in 
1838,  the  defendant  was  indicted  for  adultery  with  one  L.  W.  at, 
etc.,  without  further  designation.  There  were  two  persons,  father 
and  son,  of  the  same  name,  in  the  same  town,  and  the  latter 
used  the  addition  of  "  junior  "  to  his  name,  and  was  thereby  known 
and  distinguished  from  his  father.  It  was  held  that  the  accused  had 
the  right  to  understand  that  the  offense  was  charged  to  have  been 
committed  with  the  father,  and  evidence  of  adultery  with  "  L.  W. 
Jr."  could  not  be  admitted  under  such  indictment.4 

Mr.  Wharton  in  his  Evidence  says:  "  Human  identity  is  an  infer- 
ence drawn  from  a  series  of  facts,  some  of  them  veiled,  it  may  be, 
by  disguise,  and  all  of  them  more  or  less  varied  by  circumstances."5 

1  Boies  v.  McAllister,  3  Fairf.(Me.)  308.        4  State  v.  Vittum,  9  N.  H.  519. 

»  Bodwell  v.  Swan,  8  Pick.  876.  •  Whart.  Cr.  Ev.,  §    13,  also  §  803, 

1  People  v.  Rolfe,  61  Cal.  541.  n.  6. 


OPINION  EVIDENCE.  127 

While  this  may  be  true,  it  is  a  fact,  to  be  proved  like  other  facts,  and 
may  depend  upon  circumstantial  evidence.  But  then  he  says : 
"  After  all,  we  have  to  go  back  to  opinion.  A  witness  says :  '  The 
person  in  question  is  A.'  This  is  opinion.  A  jury  infers  from  marks 
of  identity  or  dissimilarity,  that  identity  is  proved  or  disproved. 
This  again  is  opinion;  but  it  is  opinion  more  primary  and  more  re- 
liable than  that  of  witnesses  speaking  from  impressions  produced  upon 
themselves.  And  recollecting  how  easily  opinions  as  to  identity  are 
affected  by  prejudice,  we  must  conclude,  when  we  rest  on  the  opinion 
of  witnesses  as  our  authority,  that  the  two  great  constituents  of  re- 
liability are :  1.  Familiarity  with  the  person  in  controversy ;  and  2. 
Freedom  from  personal  or  party  prejudice."1 

Non-expert  —  disease  of  slaves. 

§  190.  In  an  action  for  a  breach  of  covenant  in  the  warranty  of  a 
slave  in  Tennessee,  it  was  held  that  the  opinion  of  a  witness  as  to 
the  condition  of  the  slave,  founded  upon  observation  and  knowledge, 
was  admissible  in  evidence.  But  the  witness  must  first  state  the 
facts  upon  which  his  opinion  is  founded,  and  then  he  may  testify 
that  opinion.  In  speaking  of  this  the  court  said  :  "  It  seems  to  me 
that  there  was  error  in  rejecting  those  parts  of  Washington  Hitch- 
cock's deposition,  wherein,  speaking  of  the  slave  Clarissa,  he  says : 
She  was  at  the  time  I  first  saw  her,  and  now  is,  almost,  if  not  quite, 
an  idiot,'  also  the  words,  *  and  seems  not  to  understand  what  is  said 
to  her,'  and  also,  '  she  seems  to  have  no  care  of  herself  or  sense  of 
protection.'  "2  Another  case  in  the  same  State  was  covenant  on  the 
soundness  of  a  slave.  It  was  there  held  that  the  opinion  of  the  physi- 
cian who  attended  the  deceased  slave,  as  to  the  character  and  duration 
of  the  disease,  were  competent  evidence ;  and  that  the  statements  of 
the  slave,  made  to  the  physician  and  others  during  his  illness  as  to 
the  symptoms  and  effects  of  the  disease,  were  competent  evidence.3 

Same  —  injuries  —  rule  in  Kansas. 

§  191.  But  in  Kansas,  where  an  action  was  brought,  to  recover  for 
damages  resulting  from  a  fall  caused  by  an  alleged  defective  street  cross- 
ing, plaintiff  had  a  judgment  for  $4,000.  The  Supreme  Court  re- 
versed it.  He  was  injured  at  the  crossing,  which  had  formerly  ex- 
tended over  the  gutter,  making  the  surface  of  the  sidewalk  and  cross- 

1  Whart.  Cr.  Ev.,  §  807.  8  Jones  v.  White,  11  Humph.  268. 

9  Norton  v.Moore,3  Head  (Tenn.),  480. 


128  THE  LAW  OF  IDENTIFICATION. 

ing ;  but  an  abutting  lot-owner  had  cut  off  the  planks  composing 
the  crossing,  to  put  in  stone,  and  left  it  uncovered.  The  city  authori- 
ties knew  the  condition  of  it  for  weeks  prior  to  the  accident.  The 
court  permitted  the  plaintiff  to  introduce  in  evidence  that  the  street 
crossing  was  unsafe  and  dangerous.  No  attempt  was  made  to  show 
that  these  witnesses  were  experts.  They  had,  however,  seen  the 
street  crossing  where  the  accident  occurred.  The  court,  in  so  decid- 
ing, said :  "  As  a  general  rule,  the  opinions  of  witnesses  are  not  com- 
petent evidence,  although  such  opinions  are  derived  from  the  wit- 
nesses' personal  observation,  and  are  sought  to  be  given  in  evidence 
in  connection  with  the  facts  on  which  they  are  based.  To  this  rule 
there  are  some  exceptions.  In  matters  relating  to  skill  and  science, 
such  persons  as  have  had  sufficient  experience,  or  who  are  possessed 
of  sufficient  knowledge,  as  experts,  may  give  their  opinions,  whether 
they  personally  know  the  facts  or  not.  There  are  also  some  excep- 
tions seemingly  founded  upon  convenience  or  necessity,  and  relating 
to  such  matters  as  involve  magnitudes  or  quantities  or  proportions 
of  time.  *  *  *  The  present  case,  however,  does  not  come  within 
either  of  the  exceptions,  but  comes  within  the  general  rule ;  and, 
therefore,  it  was  error  for  the  court  to  admit  the  evidence.  Whether 
the  crossing  was  safe  or  unsafe  depended  upon  very  many  circum- 
stances.1 

Same  —  rule  in  New  Hampshire  and  Indiana. 

§  192.  As  a  general  rule  of  course,  as  we  have  seen,  the  opinion 
of  witnesses  is  not  to  be  received  in  evidence,  merely  because  they  may 
have  had  some  opinion,  with  no  greater  opportunity  of  observation 
than  others,  unless  they  relate  to  matters  of  skill  and  science.  But  it 
was  held  that  the  opinion  of  an  experienced  teamster  respecting  the 
value  of  horses,  harness  and  wagons,  which  are  familiar  to  him,  is 
admissible,  it  not  being  a  matter  of  skill  or  science.2  It  was  held  in 
New  York  that,  in  the  assessment  of  damages  for  the  breach  of  a 
covenant,  the  opinion  of  witnesses  as  to  the  probable  amount  of 
damages  are  not  admissible.  That  witnesses  must  give  facts  and 
not  opinions,  except  in  matters  relating  to  science,  when  the  opinions 
of  experts  may  be  received.  That  on  questions  of  insanity,  in  cases 
of  crim.  con.,  and  in  actions  for  breach  of  promise  of  marriage,  the 
opinions  of  witnesses  will  be  received,  although  in  the  first  case  the 

1  City  of  Parsons  v.  Lindsay,  26  Kans.        2  Robertson  v.  Starke,  15  N.  H.  109. 
426. 


OPINION  EVIDENCE.  129 

exception  should  be  limited  to  the  opinions  of  professional  men.1  In 
an  action  against  a  railroad  company  for  damages  for  personal  in- 
jury, a  witness  was  asked,  "  What  was  his  physical  condition  as  to 
health  up  to  the  time  of  the  injury? "  Ans.  "  "Well,  his  appearance 
looked  like  he  might  be  a  stout  man  ;  I  always  supposed  he  was,  from 
his  appearance  ;  of  cqurse  I  am  not  a  doctor ;  he  had  a  healthy  look." 
"  "What  was  his  condition  as  to  health  and  physical  condition  on 
yesterday  ? "  Ans.  "  Why,  he  looked  very  much  worn  down,  to 
what  he  did  the  last  time  I  saw  him."  This  was  properly  received, 
and  confirmed  as  correct.2 

Same  —  murder  —  assault  and  battery. 

§  193.  An  action  was  brought  in  Indiana  for  damages  for  assault 
and  battery.  Plaintiff  had  judgment  for  $500.  which  was  affirmed. 
The  court  was  of  opinion  that,  in  a  suit  for  personal  injuries,  on  ac- 
count of  assault  and  battery,  alleging  suffering  and  a  permanent  im- 
pairment of  health  as  the  result,  testimony  by  the  plaintiff  as  to  the 
wounds,  pain  and  suffering,  loss  of  sleep,  and  poor  health  afterward, 
is  not  matter  of  opinion,  but  a  statement  of  facts,  and  is  admissible.3 
In  an  indictment  for  murder  in  Indiana,  the  court  charged  the  jury 
thus:  "  The  opinions  of  medical  experts  are  to  be  considered  by  you 
in  connection  with  the  other  evidence  in  the  case,  but  you  are  not 
bound  to  act'  upon  them  to  the  exclusion  of  the  other  evidence. 
Taking  into  considerations  these  opinions,  and  giving  them  due 
weight,  you  are  to  determine  for  yourselves,  from  the  whole  evidence, 
whether  the  accused  was  or  was  not  of  sound  mind,  yielding  him  the 
benefit  of  a  reasonable  doubt,  if  any  such  doubt  arises."  This  was 
held  to  be  correct.4 

Same  —  damages  —  values  —  rule  in  Indiana. 

§  194.  In  the  same  State,  and  where  this  question  has  been  very 
frequently  before  the  court,  and  much  discussed,  it  was  held,  in  an 

2  Norman  v.  Wells,  17  Wend.  137.  man  v.  Johnson,  35  id.  252;   R.  R.  Co. 

3  Carthage  Turnpike  v.  Andrews,  102  v.  McLendon,   63  id.  266;  R.   R.  Co.  v. 
Ind.  138.  Citing  House  v.  Ford,4Blackf.  George,  19  111.  510;  Willis  v.  Quimby, 
293;  Indianapolis  v.  Buffer,  30  Ind.  235;  11   Fost.   (N.    H.)   488;    Elliott   v.  Van 
Benson  v.   McFadden,  50  id.  431;  Hoi-  Buren,  33  Midi.  49;  Culver  v.  Dwight, 
ten  v.   Board,  etc.,  55  id.  194;  Coffman  6 Gray,  444;  Irish  v.  Smith,  8  Serg.  &  R. 
v.  Reeves,  62  id.  334;  State  v.  Newlin,  573;  Parker  v,  Boston,  etc., Co.,  109  Mass. 
69    id.    108;    Mills   v.    Winter,  94  id.  449;  Best   Prin.  Ev.  494;  Com.  v.  Stur- 
329;  Johnson  v.  Thompson,  72  id.  167;  tivant,  117  Mass.  122;  Evans  v.  People, 
Yost  v.  Conroy,  92   id.  464;    R.   R.   Co.  12  Mich.  27;  Abbott  Trial  Ev.  599,  600. 
v.  Hale,  93  id.   79;    Goodwin   v.  State,         4  Hamm  v.  Romine,  98  Ind.  77. 

96  id.  550;  Hamm  v.  Romine,  98  id.  77;        5  Goodwin  v.  State,  96  Ind.  551. 
Wilkinson  v.Moseley  30  Ala.562;  Black- 

37 


130  THE  LAW  OF  IDENTIFICATION. 

action  against  a  railroad  company  for  killing  a  horse,  that  where  it 
is  a  question  whether  a  railroad  could  properly  be  fenced  at  a  certain 
place,  it  is  not  competent  to  take  the  opinion  of  witnesses  upon  the 
question,  but  the  jury  must  be  left  to  decide  that  question  upon 
the  facts  proved.1  And  that  the  opinion  of  a  witness  as  to  the  public 
utility  of  a  ditch,  sought  to  be  established  by  law,  was  not  proper 
evidence  ;  so,  also,  as  to  the  damages  which  it  will  cause  to  the  lands 
of  a  party ;  but  the  opinion  of  one  acquainted  with  the  property,  as 
to  the  value  of  the  property  with  and  without  the  ditch,  was  compe- 
tent.2 This  would  seem  to  be  one  of  those  nice  distinctions,  without 
a  conceivable  difference,  except  in  the  fact  that  the  rule  excludes 
one  opinion  (as  to  amount  of  damages)  and  receives  two  opinions  as 
to  values ;  one  with  the  ditch  and  the  other  without  it.  And  all 
this  to  pacify  a  mere  inconvenient  precedent.  The  same  court  again 
held,  that  where  the  value  of  property  is  an  issue  in  a  cause,  any 
witness  acquainted  with  such  property  may  testify  as  to  the  value 
thereof,  stating  also  the  facts  upon  which  such  an  opinion  is  based.3 
Here  we  find  the  difficulty,  if  not  the  impossibility,  of  distinguishing 
between  facts  and  opinions,  in  some  cases. 

Same  —  general  rule  in  given  cases. 

§  195.  "Where  an  action  was  brought  upon  an  account  for  service 
rendered,  where  there  had  been  mutual  dealing  between  the  parties, 
it  was  held  proper  to  permit  a  witness  who  was  familiar  with  the 
facts,  to  testify  as  to  the  relative  value  of  the  services  and  the  com- 
modities, which  went  to  make  up  the  mutual  account  between  the 
parties.  And  then  the  value  of  such  testimony  may  be  tested  by 
cross-examination,  so  that  the  jury  may  properly  estimate  the  weight 
to  which  such  opinion  is  entitled  as  evidence.4  Mr.  Greenleaf  says : 
"  Non-experts  may  give  their  opinions  on  questions  of  identity,  re- 
semblance, apparent  condition  of  body  or  mind,  intoxication,  insan- 
ity, sickness,  value,  conduct,  and  bearing,  whether  friendly  or  hos- 
tile, and  the  like.5  An  action  was  brought  in  Indiana  against  prin- 
cipal and  surety  upon  the  bond  of  Newlin  as  guardian  of  an  insane 
person.  It  was  held  that  the  opinions  of  non-expert  witnesses,  as  to 
a  person's  unsoundness  of  mind,  are  competent  to  be  admitted  in 
evidence,  they  having  stated  the  facts  upon  which  they  have  based 
such  opinions,  to  the  jury.' 

1  R.  R.  Co.  v.  Hale,  93  Ind.  79.  4  Johnson  v.  Thompson,  72  Ind.  167. 

»  Yost  v.  Conrov,  92  Ind.  464.  •  1  Greenl.  Ev.,  §  440. 

»  Holton  v.  Com'rs,  etc.,  55  Ind.  194.        •  State  v.  Newlin,  69  Ind.  108. 


OPINION  EVIDENCE.  131 

Same  —  railroad  —  damages  —  infancy 

§  196.  Where  an  action  was  brought  on  a  promissory  note,  it  was 
held  that  a  witness  who  had  testified  to  the  personal  appearance  of 
the  defendant,  who  had  pleaded  infancy,  at  the  time  the  contract 
was  made,  on  which  suit  was  brought,  may  be  permitted  to  give  his 
opinion  as  to  the  age  of  such  person.1  A  brakeman  on  a  railroad 
train  was  required  as  a  part  of  his  duty,  in  the  night-time,  to  couple 
to  his  train  certain  cars  upon  a  side  track.  A  "  cattle  chute  "  was 
situated  near  the  side  track.  He  was  struck  by  the  "  cattle  chute  " 
and  seriously  injured.  It  was  held  that  when  witnesses  for  the  plain- 
tiff had  testified  that  such  "  cattle  chute  "  was  constructed  dangerously 
near  the  track,  the  evidence  offered  by  the  defendant  (railroad  com- 
pany) that  persons  had  frequently  ridden  past  it,  holding  to  the  side 
of  the  car,  was  proper  and  should  have  been  received.2  Where,  in 
an  action  for  damages,  it  appeared  that  defendant's  railroad  locomo- 
tive ran  into  the  plaintiff's  wagon,  two  witnesses  for  plaintiff  were 
asked  in  substance,  "  whether  a  two-horse  wagon  could  be  turned 
down  there  near  the  crossing."  It  was  said  to  be  difficult  if  not  im 
possible  to  lay  down  any  rule,  applicable  to  all  cases,  as  to  what  is 
or  what  is  not,  expert  testimony ;  but  whether  a  two-horse  wagon  can 
be  turned  in  a  certain  road,  or  opening,  is  a  question  of  fact,  to 
which  a  witness  may  testify,  though  he  is  not  shown  to  be  an 
expert.3 

Same  —  rule  in  Massachusetts  and  Connecticut. 

§  1 97.  In  an  indictment  for  unlawfully  retailing  spirituous  liquors 
it  was  held  proper  to  ask  a  witness  for  the  State  as  to  what  he  had 
seen  at  the  premises  ;  and  when  he  had  answered  that,  in  response  to 
calls  for  whisky,  defendant  poured  something  out  of  a  jug,  he  could 
be  further  asked  as  to  the  color  of  that  something,  and  that  his  an- 
swer was  admissible,  when  he  said  it  was  "  reddish."4  Plaintiff  sued 
for  damages  to  his  property  on  a  water-course,  by  the  breaking  of 
defendant's  dam,  above  him,  which  was  carried  away  by  a  freshet. 
Plaintiff  introduced  a  witness  having  no  peculiar  skill  in  the  mode 
of  constructing  dams,  who  testified  that  he  had  been  acquainted  with 
the  stream  in  question  for  many  years;  that  the  water  passing  where 
the  dam  was,  was  very  rapid  in  time  of  a  freshet;  that  the  dam  was 
built  very  high  —  higher  than  any  dam  he  had  ever  known  —  keeping 

1  Benson  v.  McFadden,  50  Ind.  431.  8  Funston  v.  R.  R.  Co.,  61  Iowa  452. 

3  Allen  v.  R.  R.  Co.,  57  Iowa,  623.  4  Com.  v.  Owens,  114  Mass.  252. 


132  THE  LAW  or  IDENTIFICATION. 

back  a  large  and  deep  pond  of  water;  and  that,  in  his  opinion,  under 
such  circumstances,  a  dam  as  defendant's  dam  was  could  not  stand. 
It  was  held  (1)  that  the  facts  thus  stated  were  unexceptionable  evi- 
dence ;  and  (2)  that  the  opinion  of  the  witness,  in  connection  with 
such  facts,  was  admissible.1 

Same  —  rule  as  to  water-power  —  photography. 

§  198.  In  another  mill  case  it  was  held  that  a  witness,  not  an  ex- 
pert, may  testify,  if  he  knows  the  fact,  that  back-water  made  by 
defendant  diminishes  the  power  of  plaintiff's  water-wheel.2  It  was 
held  in  New  Hampshire  that,  in  questions  relating  to  distances,  and 
the  dimensions  and  qualities  of  things,  a  witness  cannot  testify, 
without  an  implied  expression  of  opinion,  and  that  no  objection  can 
be  sustained  on  that  account.;)  As  to  the  opinion  of  non-expert  wit- 
nesses, it  was  held  in  Alabama,  that  though  experts  only  may  be 
competent  as  witnesses  to  testify  whether  or  not  a  photograph  is 
well  executed ;  yet,  to  enable  a  person  to  determine  whether  the 
picture  resembles  the  original,  requires  no  special  skill  in,  or  knowl- 
edge of,  the  photographic  art ;  and  on  that  question,  a  person  for 
whom  such  picture  has  been  taken,  although  possessing  no  special 
skill  or  knowledge  of  the  art  of  photography,  is  competent  to  testify 
that  the  picture  so  taken  was  a  good  likeness.4 

Opinion  —  murder  —  blood  spots. 

§  199.  Ill  an  indictment  in  New  Hampshire  for  murder,  on  the 
trial,  a  witness  for  the  prosecution  having  testified  that  the  morning 
after  the  murder  he  saw,  near  the  house  of  the  prisoner,  where  the 
murder  was  committed,  and  in  a  path  between  it  and  the  house  of 
the  prisoner's  father,  to  which  he  went,  he  saw  spatters  and  spots 
upon  a  stone,  and  after  the  witness  had  stated  that  he  could  testify 
as  a  matter  of  fact  what  the  spots  were,  he  was  asked  so  to  state. 
This  was  objected  to  as  irrelevant,  and  that  the  witness  was  not  an 
expert,  and  not  competent  to  express  an  opinion.  The  objection 
was  overruled ;  the  court  stated,  however,  that  his  opinion  was  not 
requested,  and  he  would  only  be  allowed  to  answer,  as  a  fact,  what  the 
substance  was.  The  witness  answered  that  it  was  blood.  It  was 
held  that  the  admission  of  the  evidence  was  not  error  —  that  the 
witness,  though  not  an  expert,  was  competent  to  testify  to  a  fact.s 

1  Porter  v.  Mfg.  Co.,  17  Conn.  249.  "Greenfield  v.  People,  85  N.  Y.  75. 

9  Williamson  v.  Tingling,  80  Ind.  879.  Citing  Com.   v.   Sturtivant,   117   Mass. 

»  Hackett  v.  R.  B.  Co.,  85  N.  H.  890.  122,  132;  People  v.  Eastwood,  14  N.  Y. 

4  Barnes  v.  Ingalls,  39  Ala.  193.  562.  Linsday  v  People,  63  id.  143. 


OPINION  EVIDENCE.  133 

Same  —  sanity  of  testator  —  rule  in  Massachusetts. 

§  200.  An  appeal  was  taken  from  the  allowance  and  probate  of 
two  instruments,  purporting  to  be  a  will  and  a  codicil.  It  was  held 
that,  on  the  issue  as  to  whether  the  testator  was  of  sound  and  dis- 
posing mind,  the  evidence  of  a  witness  who  had  had  an  inter- 
view with  the  testator  three  weeks  before  the  date  of  the  will,  that 
he  observed  no  incoherence  of  thought  in  the  testator,  nor  any  thing 
unusual  or  singular  in  respect  to  his  mental  condition,  was  held  to  be 
competent.1  In  a  similar  proceeding  in  the  same  State,  it  was  held 
that,  upon  the  issue  of  the  sanity  of  a  testator,  persons  acquainted 
with  him,  although  neither  witnesses  to  the  will  or  medical  experts, 
may  testify  whether  they  noticed  any  change  in  his  intelligence  or 
any  want  of  coherence  in  his  remarks.2* 

Non-expert  —  rule  in  Indiana. 

§  201.  In  Indiana  a  party  was  indicted  for  incest,  and  the  plea  of 
insanity  was  interposed.  It  was  held  that  in  criminal  cases  a  non- 
expert witness  must  always  state  the  facts  upon  which  he  bases  his 
opinion  as  to  the  mental  capacity  of  the  defendant,  and  it  must  also 
appear  that  he  has  some  knowledge  of  the  acts  and  conduct  of  the 
defendant,  to  entitle  his  opinion  to  be  received  in  evidence.  The 
court  should  decide  whether  such  knowledge  has  been  shown,  and 
such  facts  stated,  as  will  entitle  the  witness  to  express  an  opinion,  but 
what  weight  theoi)inion  shall  have  is  a  question  of  fact  to  be  settled 
by  the  jury.3 

Same  —  sidewalk  —  rule  in  Illinois. 

§  202.  In  Illinois  an  action  in  damages  was  brought  against  a  town 
for  injuries.  The  question  whether  a  sidewalk  made  of  rough  plank, 
laid  on  stringers,  was  properly  constructed  or  not,  was  held  not  to 
be  a  question  for  an  expert  altogether,  only  to  be  put  to,  and  an- 
swered by  one  who  has  the  reputation  for  skill  in  such  work  and  in 
the  handling  of  tools,  and  quality  and  adaptation  of  materials ;  that 

'Nash,  v.  Hunt,  116  Mass.  238  (1874).        3Colee  v.  State,  75  Ind.  511. 
2  Barker  v.  Comins,  110  Mass.  477. 

*  In  Barker  v.  Comins,  110  Mass.  477,  GRAY,  J.,  said:  "The  questions  to  the  witnesses  pro- 
duced at  the  trial  were  rightly  admitted.  They  did  not  call  for  the  expression  of  an  opinion 
upon  the  question  whether  the  testator  was  of  sound  or  unsound  mind,  which  the  witnesses,  not 
being  either  physicians  or  attesting  witnesses,  would  not  be  competent  to  give.  The  question 
whether  there  was  an  apparent  change  in  a  man's  intelligence  or  understanding,  or  a  want  of 
coherence  in  his  remarks,  is  a  matter,  not  of  opinion,  but  of  fact,  as  to  which  any  witness  who 
has  had  opportunity  to  observe  may  testify,  in  order  to  put  before  the  court  or  jury  the  acts 
and  conduct  from  which  the  degree  of  his  mental  capacity  may  be  inferred." 


134  THE  LAW  OF  IDENTIFICATION. 

a  man  of  common  sense  and  ordinary  observation  and  experience 
can  pronounce  as  satisfactorily  upon  such  a  question  as  the  most  ac- 
complished mechanic,  and  that  it  was  error  in  the  court  below  to  ex- 
clude such  evidence  from  the  consideration  of  the  jury.1 

Same  —  rule  in  New  Hampshire  and  Connecticut. 

§  203.  Where,  in  New  Hampshire,  the  plaintiff  contracted  to  do 
certain  grading  for  defendant's  railroad,  it  was  held  that  what  hard 
pan  was,  and  whether  any  was  found  in  excavating,  were  not  ques- 
tions relating  to  matters  of  science,  art  or  skill,  and  that  it  was  not 
necessary  that  a  witness  should  be  shown  to  be  qualified  as  an  expert 
before  he  can  be  thus  interrogated.2  But  in  Connecticut  it  was  held 
that  the  mere  opinion  of  a  witness  respecting  the  age  of  a  person 
from  his  personal  appearance,  where  such  opinion  was  unaccompanied 
by  any  facts  upon  which  he  bases  such  an  opinion,  was  inadmissible 
in  evidence.3  And  this  seems  to  be  the  general  rule,  and  founded 
in  sound  reason. 

Non-expert  witness  —  rule  in  Vermont. 

§  204.  In  Vermont  an  appeal  was  taken  from  an  order  to  remove 
paupers,  and  one  question  was,  whether  the  paupers,  at  the  date  of 
the  order,  had  a  legal  settlement  in  Troy;  and  this  depended  upon 
whether  he  (Thomas)  gained  a  settlement  there  by  seven  years'  con- 
tinuous residence.  The  question  was  put  to  the  witness,  Craig, 
"  from  your  opportunities  of  knowing,  as  you  have  stated  them,  do 
you  think  it  possible  for  Thomas  to  have  lived  in  Troy  that  year 
and  you  not  have  known  it  ? "  To  which  the  witness  answered :  "I 
should  not  think  it  was."  This  was  held  to  have  been  properly  re- 
ceived.4 In  an  earlier  case  in  the  same  State,  on  this  subject,  BOYCE, 
J.,  said :  "  This  rule,  however,  has  its  exceptions,  some  of  which 
are  as  familiar  and  as  well  settled  as  the  rule  itself.  Where  all  the 
pertinent  facts  can  be  sufficiently  detailed  and  described,  and  where 
the  triers  are  supposed  to  be  able  to  form  correct  conclusions  without 
the  aid  of  opinion  or  judgment  from  others,  no  exception  to  the 
rule  is  allowed.  But  cases  occur  where  the  affirmative  of  these  propo- 
sitions cannot  be  assumed.  The  facts  are  sometimes  incapable  of 
being  presented  with  all  their  proper  force  and  significance  to  any 
but  the  observer  himself,  as  in  case  of  insanity,  to  which  may  be 

1  Alexander  v.  Town  of  Mt.  Sterling,        *  Morse  v.  State,  6  Conn.  0.   • 
71  111.  306.  *  Cavendish  v.  Town  of  Troy,  41  Vt. 

'Currier  v.  R.  R.  Co.,  84  N.  H.  498      99  (1868). 


OPINION  EVIDENCE.  135 

added  that  of  a  settled  affection  or  dislike  toward  a  particular 
person.  Under  these  circumstances,  the  opinion  of  witnesses  must 
be  received.1 

Same  —  rule  on  the  subject. 

§  205.  The  rule  is,  that  any  witness,  not  an  expert,  who  knows 
the  facts  personally,  may  give  an  opinion  in  a  matter  regarding 
skill,  stating  also  the  facts  upon  which  he  bases  that  opinion.  As 
said  by  Mr.  Wharton  in  his  Law  of  Evidence  (§  512):  "  So  an  opinion 
can  be  given  by  a  non-expert  as  to  matters  with  which  he  is  specially 
acquainted,  but  which  cannot  be  specifically  described."2  And  as  to 
experts  themselves,  Mr.  Greenleaf  says :  "  Where  scientific  men  are 
called  as  witnesses,  they  cannot  give  their  opinion  as  to  the  general 
merits  of  the  cause,  but  only  their  opinion  upon  the  facts  proved." 
And  Mr.  Starkie  in  his  Law  of  Evidence,  in  a  concise  form,  says : 
"  The  general  distinction  is,  that  the  jury  must  judge  of  the  facts  for 
themselves.  But  that  wherever  the  question  depends  on  the  exer- 
cise of  peculiar  skill  or  knowledge,  that  may  be  made  available,  it 
is  not  a  decision  by  the  witness  on  facts,  to  the  exclusion  of  the  jury; 
but  the  establishment  of  a  new  fact,  relation  or  connection  which 
would  otherwise  remain  unproved." 

Opinion  —  as  to  the  value  of  a  gun. 

§  206.  One  Cooper  was  indicted  in  Mississippi  for  stealing  a  gun, 
of  the  value  of  $15,  which  was  grand  larceny.  If  the  value  of  the 
gun  were  less  than  $10  it  would  have  been  petit  larceny,  and  so  the 
question  of  value  was  important.  Several  witnesses  having  seen  the 
gun,  testified  to  its  value.  This  was  the  only  ground  upon  which  a 
new  trial  was  asked.  It  was  held  that  the  opinion  of  any  ordinary 
witness  was  competent.  SIMKALL,  Oh.  J.,  said  :  "  Where  there  is 
a  difference  in  the  quality  of  the  same  kind  of  articles,  there  will  be 
more  or  less  difference  of  opinion  as  to  value.  Absolute  certainty  is 
not  attainable.  The  judgment  is  reliable  according  to  the  degree  of 
information  and  knowledge  which  the  person  has."3 

Same  —  as  to  the  value  of  a  dog. 

§  207.  The  folio  wing  dog  case  was  decided  in  New  York  in  1840. 
Flager  brought  suit  against  Brill  for  trespass  for  killing  a  dog.  It 
was  held  that  the  opinions  of  witnesses,  as  to  the  value  of  a  dog,  for 

1  Clifford  v.  Kichardson,  18  Vt.  620  Q  Barnes  v.  Ingalls,  39  Ala.  193;  Gun- 
(1846).  ninghain  v.  Bank,  21  Wend.  557. 

3  Cooper  v.  State,  53  Miss.  393. 


136  THE  LAW  OF  IDENTIFICATION. 

whose  destruction  an  action  was  brought,  are  admissible  in  evidence. 
NELSON,  Ch.  J.,  said  :  "  The  opinions  allowed  as  to  the  value  of  a 
well-broken  setter  dog,  I  am  inclined  to  think,  were  barely  competent, 
and  the  answer  of  the  witnesses  depended  in  a  measure  upon  their 
skill  and  judgment  in  respect  to  the  animals.  The  questions  were 
put  to  persons  supposed  to  be  acquainted  with  the  peculiar  qualities 
of  setter  dogs,  and  who  had  some  knowledge  of  their  value  in  the 
market.  The  case  is  analogous  to  those  in  which  the  opinions  of 
persons  are  always  permitted,  of  the  value  of  domestic  animals,  such 
as  cattle,  sheep,  etc.,  in  which  they  are  in  the  habit  of  dealing.  They 
are  supposed  to  be  better  acquainted  with  the  general  market  value 
of  such  animals  than  the  generality  of  mankind.  A  common  stand- 
ard is  thus  fixed  that  may  assist  in  arriving  at  the  value  in  the  par- 
ticular instance,  which  will  be  value  according  to  the  quality,  condi- 
tion, etc.,  of  the  article  in  question.1  The  proof  in  the  case  was 
slight  as  to  the  breed  and  quality  of  the  plaintiff  ;  but  it  was  enough, 
I  think,  to  authorize  the  general  inquiry.  The  court  and  jury 
always  make  the  proper  application.  They  have  obviously  done  so 
in  this  case  ;  for  though  the  value  of  a  well-broken  setter  was  put  at 
from  $100  to  $200,  the  jury  found  for  plaintiff  only  $25." 

Opinion  of  temperature  —  heat  —  cold. 

§  208.  In  an  action  brought  against  a  railroad  company  to  recover 
for  the  loss  of  potatoes  which  froze  while  in  the  possession  of 
defendant,  as  a  common  carrier,  it  was  held  competent  to  permit 
witnesses  to  give  their  opinions  of  the  state  of  the  weather  on  the 
day  the  potatoes  were  shipped,  and  whether  it  was  sufficiently  cold 
to  freeze  potatoes  while  in  the  cars  ;  or  as  to  the  state  of  the  weather 
during  the  time  they  were  in  store  at  Chicago,  and  whether  it  was 
sufficiently  cold  to  freeze  them  in  the  store-room.2  A  similar  ques- 
tion arose  in  an  action  for  a  breach  of  warranty,  on  the  sale  of  a  lot 
of  hams ;  and  it  was  there  held  that  a  witness  may  testify,  in  general 
terms,  as  to  the  temperature  of  the  place  of  the  storage  of  goods 
(such  as  hams)  liable  to  be  injured  by  heat,  and  the  jury  may  find, 
from  such  evidence,  whether  the  goods  were  properly  stored  and 
cared  for,  although  no  means  were  used  by  the  witness  or  others  to 
ascertain  the  exact  temperature.3 

1  Brill  v.  Flager,  23  Wend.  864.  3  Leopold  v.  Van  Kirk,  29  Wis.  548. 

*  Curtis  v.    R.   R.   Co.,  18  Wis.   312.     And  see  Curtis  v.  R.  R.  Co.,  18  id.  312. 
And  see  Leopold  v.  Van  Kirk,  29  id. 
MS. 


OPINION  EVIDENCE.  137 

Same  —  instances  —  caution. 

§  209.  Any  witness  may  state,  if  he  has  the  proper  knowledge  of 
the  fact,  whether  a  party  is  solvent  or  insolvent,  and  yet  the  most  that 
can  be  said  of  such  testimony  is,  that  it  is  a  mere  matter  of  opinion.1 
And  he  may  also  testify  as  to  the  speed  at  which  an  engine  was  run- 
ning at  any  particular  time,  when  that  question  becomes  a  material 
one.  This,  too,  is  necessarily  an  opinion,  as  in  the  case  of  handwrit- 
ing, or  of  footprints.2  In  all  these  questions  of  opinion  evidence, 
whether  the  witness  be  an  expert  or  not,  when  he  gives  an  opinion, 
there  is  nothing  conclusive  in  that.  Upon  cross-examination,  the 
facts,  if  any  there  be,  upon  which  the  witness  bases  his  opinion  may 
be  brought  out,  and  the  jury  is  entitled  to  them ;  and  upon  these 
facts  the  jury  may  form  a  different  opinion.  Any  man  of  reason 
and  observation  knows  how  unreliable  the  opinion  of  man  is,  and 
how  varied  upon  a  given  state  of  facts.  Hence,  the  opinions  of  wit- 
nesses do  not  bind  the  jury ;  but,  at  most,  they  can  only  furnish  an 
additional  fact  for  the  consideration  of  the  jury.  Especially  is  this 
true  in  questions  of  sanity  or  insanity,  when  one  man  sets  himself 
up  as  the  judge  of  the  mental  capacity  of  his  fellow  man.  The  un- 
certainties and  dangers  admonish  us  to  receive  opinion  evidence 
with  abundant  caution. 

Opinion  —  value  of  real  property. 

§  210.  As  to  the  opinion  of  a  witness  upon  the  value  of  real  es- 
tate, it  has  never  been  regarded  as  a  matter  of  science  or  skill,  or  as 
involving  either,  nor  does  it  require  an  expert  to  give  an  opinion. 
If  not  in  all  matters,  certainly  in  this  matter,  common  sense  serves  a 
better  purpose  than  science.  Without  depreciating  the  latter,  it  seems 
safe  to  give  preference  to  the  former.  A  non-expert  witness  may 
give  his  opinion  on  the  subject,  if  he  has  the  knowledge  of  the  value 
thereof.  It  has  been  so  held  in  most  of  our  States.  It  was  so  held 
in  New  York.3  And  often  so  held  in  Massachusetts,4  and  by  the 

1  Blanchard  v.  Mann,  1  Allen,  433.  Bank  v.  Keavy,  128  Mass.  298;  Walker 

2  Young  v.  State,  68  Ala.  569;  State  v.  Boston,  8  Cush.  279;  Wyman  v.  R. 
v.  iMoelchen,53  Iowa,  310;  State  v.  Reitz,  R.  Co.,  13  Mete.   327;  Sexton  v.  North 
83  X.  C.  634.  Bridgewater,  116  Mass.  200;  Hawkins  v. 

3Jarvis    v.    Furman,    25    Hun,    391;  City,  etc.,  119  id.  94;  Dwight  v.  Comrs., 

Thorn  v.  Sutherland,  id.  435.  11  Cush.  203;  Shattuck  v.   R.   R.   Co., 

4  Brown  v.  R.   R.   Co.,   5    Gray,   35;  6   Allen,    116;    Dickenson    v.    Inhabit- 

Shaw  v.  City  of  Charlestown,  2  id.  107;  ants,  13  Gray,  546;  Russell  v.  R.  R.  Co., 

Hosmerv.  Warner,  15  id.  46;  Rand  v.  4  id.  607;    Whitman  v.  R.  R.  Co.,  7 

Inhabitants,  etc.,  6  Allen,  38;  Wether-  Allen,  316. 
bee  v.  Bennett,  2  id.  428;  Bristol  County 

18 


138  THE  LAW  OF  IDENTIFICATION. 

court  of  Pennsylvania.1  In  Ohio,2  also  in  Iowa,3  and  very  fre- 
quently in  Indiana,4  and  in  Missouri,5  in  Maine,6  in  Illinois,7  in 
Texas,8  in  Wisconsin,9  and  Michigan,10  and  in  fact  it  may  be  consid- 
ered not  an  exception,  but  a  rule. 

Opinions  of  witnesses  —  covenant  —  trespass. 

§  211.  In  an  action  of  covenant  in  New  York,  the  question  was, 
ought  the  opinions  of  witnesses  to  have  been  received  as  to  the  amount 
of  damages?  The  proposition  being  to  take  the  abstract  opinion  of 
the  witnesses  on  an  examination  in  chief,  subject  only  to  cross-ex- 
amination, COWEN,  J.,  said  :  "  The  amount  of  indemnity,  where  it 
is  not  capable  of  being  reached  by  computation,  is  always  a  question 
for  the  jury.  If  there  be  any  rule  without  exception  it  is  this ;  and 
I  have  been  unable  to  find  any  instance  where  the  opinions  of  wit- 
nesses have  been  received.11  In  an  action  of  trespass  in  England,  for 
cutting  a  bank  which  had  been  erected  to  prevent  overflow,  the 
question  of  opinion  evidence  was  presented,  and  on  a  motion  for  new 
trial,  Lord  MANSFIELD,  C.  J.,  said :  "  A  confusion  now  arises  from 
a  misapplication  of  the  terms.  It  is  objected  that  Mr.  Smeaton  is 
going  to  speak,  not  as  to  facts,  but  as  to  opinion.  That  opinion, 
however,  is  deduced  from  facts  which  are  not  disputed  —  the  situation 
of  the  banks,  the  course  of  the  tides,  and  of  winds,  and  the  shifting 
of  sands.  His  opinion,  deduced  from  all  these  facts,  is,  that,  mathe- 
matically speaking,  the  bank  may  contribute  to  the  mischief,  but 
not  sensibly.  Mr.  Smeaton  understands  the  construction  ot  harbors, 
the  causes  of  their  destruction,  and  how  remedied ;  in  matters  of 
science  no  other  witnesses  can  be  called.  An  instance  frequently 
occurs  in  actions  for  unskillfully  navigating  ships.  The  question  then 
depends  on  the  evidence  of  those  who  understand  such  matters  ;  and 
when  such  questions  come  before  me,  I  always  send  for  some  of  the 
brethren  of  the  Trinity  House,  I  cannot  believe  that  where  the  ques- 

1  Brown     v.     Corey,     43     Pa.     St.         6  Tate  v.  R.  R.  Co.,  64  Mo.  149. 

495;    Hanover  Water  Co.   v.    Ashland  •  Snow   v.  Boston,   etc.,  65  Me.  230; 

Co.,  84  id.  279.  Warren  v.  Wheeler,  21  id.  484. 

2  Atlantic,   etc.,  Ry.  Co.  v.  Campbell,  7  Green  v.  Chicago,    97  111.  374;  La- 
4  Ohio  St.  583;  Cleveland,  etc.,  Ry.  Co.  fayette,  etc.,  Ry.  Co.  v.  Winslow,  66  id. 
v.  Ball,  5  id.  568.  219;  Cooper  v.  Randall,  59  id.  317;  Las- 

3  Dalzell   v.    City  of     Davenport,    12  well  v.  Robbins,  89  id.  210;  French  v. 
Iowa,  440;  Henry  v.   R.    R.   Co.,  2  id.  Snyder,  30  id.  344. 

289;  Sater  v.  P.  R.  Co.,  1  id.  886.  8  Houston,  etc.,  Ry.  Co.  v.  Knapp,  51 

4  Evansville,  etc.,  Ry.  Co.  v.  Cochran,     Tex.  592. 

10  Ind.  560;  Frankfort,  etc.,  Ry.  Co.  v.  •  Erd  v.  R.  R.  Co.,  41  Wis.  65. 

Windsor,  51  id.  238;  Holten  v.  Comrs.,  '"  Pettibone  v.   Smith,  37  Mich.   579; 

etc.,  55  id.  194;  Ferguson  v.  Stafford,  38  Page  v.  Wells,  id.  415. 

id.  162.  »  Norman  v.  Wells,  17  Wend.  137. 


OPINION  EVIDENCE.  139 

tion  is,  whether  a  defect  arises  from  a  natural  or  an  artificial  cause, 
the  opinions  of  men  of  science  are  not  to  be  received.  Handwriting 
is  proved  every  day  by  opinion ;  and  for  false  evidence  on  such  ques- 
tions, a  man  may  be  indicted  for  perjury.  Many  nice  questions  may 
arise  as  to  forgery,  and  as  to  impressions  of  seals  ;  whether  the  im- 
pression was  made  from  the  seal  itself  or  from  an  impression  in  wax. 
In  such  case  I  cannot  say  that  the  opinion  of  seal  makers  is  not  to  be 
taken.1* 

Witness  —  opinion  —  of  the  horse. 

§  212.  A  witness  who  testifies  from  personal  knowledge  of  the 
facts  upon  which  his  opinion  is  founded  (the  disposition  of  a  horse 
being  in  question)  was  asked :  "  From  your  knowledge  of  the 
horse,  was  he.  in  your  opinion,  a  safe  and  kind  horse?"  This  was 
held  to  be  proper;  but  it  was  held  that  to  render  the  opinion  of  common 
witnessec  admissible  it  is  indispensable  that  they  be  founded  on  their 
1  Folkes  v.  Chadd,  3  Doug.  157. 

*To  the  case  of  Folkes  v.  Chadd,  3  Doug.  157,  we  find  appended  the  following  note,  to-wit: 
"  This  may  be  regarded  as  the  principal  case  on  the  admissibility  of  opinion.  It  has  been  fol- 
lowed and  confirmed  by  a  variety  of  similar  decisions.  In  Thornton  v.  Royal  Exchange  Assur- 
ance Company,  1  Peake  N.  P.  C.  25,  Lord  KENYON  admitted  the  evidence  of  a  ship-builder  on  a 
question  of  sea- worthiness,  though  he  had  not  been  present  at  the  survey.  And  in  a  subsequent 
case,  his  lordship  received  the  evidence  of  underwriters  in  explanation  of  the  terms  of  a  policy. 
Chaurand  v.  Angerstein,  1  Peake  N.  P.  C.  43.  See,  also,  Berthon  v.  Loughman,  2  Stark. 
N.  P.  C.  258.  But  see  Durrell  v.  Bederley,  Holt  N.  P.  C.  286.  So,  a  person  versed  in  the 
laws  of  a  foreign  country  may  give  evidence  as  to  what  hi  his  opinion  would,  according  to 
the  law  of  that  country,  be  the  effect  of  certain  facts.  Chaurand  v.  Angerstein,  1  Peake 
N.  P.  C.  44.  In  prosecutions  for  murder,  medical  men  are  allowed  to  state  their  opinions, 
whether  the  wounds  described  by  the  witnesses  were  likely  to  have  occasioned  death.  In 
Rex  v.  Wright,  who  was  tried  for  murder,  the  defense  being  insanity,  the  twelve  judges  were 
unanimous  in  opinion  that  a  witness'of  medical  skill  might  be  asked  whether,  in  his  judgment, 
such  and  such  appearances  were  symptoms  of  insanity,  and  whether  a  long  fast,  followed  by  a 
draught  of  strong  liquor,  was  likely  to  produce  a  paroxysm  of  that  disorder  in  a  person  subject 
to  it.  But  several  of  the  judges  doubted  whether  the  witness  could  be  asked  his  opinion  on  the 
very  point  which  the  jury  were  to  decide,  viz. :  whether,  from  other  testimony  given  in  the  case, 
the  act  with  which  the  prisoner  was  charged  was,  in  his  opinion,  an  act  of  insanity.  Rex  v. 
Wright,  Russ.  &  Ry.  Cr.  Cas.  R.  456;  2  Russ.  Crimes,  623  (2d  ed.)  The  Scotch  law  is  the  same 
as  our  own  on  this  subject.  Professional  men,  when  examined  on  the  subject  of  their  art  or 
science,  are  of  necessity  allowed  to  state  their  opinions,  and  to  speak  to  the  best  of  their  skill 
and  judgment.  In  homicide,  the  corpus  delicti  is  in  many  cases  established  by  no  other  evi- 
dence. Burnett  on  the  Criminal  Law  of  Scotland,  453.  In  the  principal  case  Lord  MANSFIELD 
said:  "  Handwriting  is  proved  every  day  by  opinion."  In  Revett  v.  Braham,  B.  R.  H.  32  G.  3, 
4  T.  R.  497,  two  clerks  from  the  post-office,  accustomed  to  inspect  franks,  and  to  detect  for- 
geries, were  allowed  to  give  evidence  of  their  opinion  as  to  the  genuineness  of  the  handwriting 
to  a  will,  and  similar  evidence  was  admitted  in  Rex  v.  Gator,  by  HOTHAM,  B.,  4  Esp.  N.  P.  C.  145, 
and  in  Birch  v.  Crewe,  by  ABBOTT,  J.,  cited  5  B.  &  Aid.  332.  The  authority  of  these  decisions, 
nowever,  has  been  much  shaken  by  the  case  of  Gary  v.  Pitt,  Peake  Ev.,  Appendix,  84  (4th  ed.), 
in  which  Lord  KENYON  rejected  such  evidence,  and  by  the  case  of  Gurney  v.  Langlands,  B.  R. 
H.  2  G.  4,  5  B.  &  A.  330,  in  which  the  judges  expressed  great  doubts  as  to  the  admissibility  of  such 
evidence,  and  observed  that,  at  all  events,  it  was  entitled  to  no  weight,  and  was  much  too  loose 
to  be  the  foundation  of  a  judicial  decision  either  by  judges  or  jury." 


14:0  THE  LAW  OF  IDENTIFICATION. 

own  personal  observation  and  not  on  the  testimony  of  others,  or  any 
hypothetical  statement  of  facts,  as  is  permitted  in  the  case  of  an 
expert,  and  he  should  be  able  to  state  such  facts  as  will  satisfy  the 
jury,  at  least  presumptively,  that  his  opinion  is  well  founded.1  In 
an  action  for  damages  for  a  nuisance  in  placing  a  pile  of  stones 
by  the  side  of  the  highway,  and  causing  plaintiff's  horse  to  take 
fright  and  run  away,  the  following  question  and  answer  thereto 
were  held  admissible:  "  What  objects  usually  make  horses  shy,  accord- 
ing to  your  experience?"  Answer.  "I  think  any  new  object  on 
the  road  ? "  And  also,  "  At  what  place  has  your  horse  gone  near  to 
moving  trains  of  cars  ? "  and  "  How  was  your  horse  affected  by  the 
road  roller  ? "  and  "  How  extensively  is  it  known  in  the  neighborhood 
that  the  horse  has  run  awav  ? "  These  being  permitted  was  no 
ground  for  a  new  trial.2 

Same  —  same  —  rule  in  Iowa. 

§  213.  An  action  was  brought  against  the  city  of  Ottumwa  to  re- 
cover damages  for  an  injury  from  being  thrown  from  a  wagon  on 
the  street.  Mrs.  McGuire,  a  witness,  when  asked  to  state  in  her  own 
way  how  the  accident  occurred,  said:  "  There  was  some  one  stand- 
ing on  those  steps  near  the  door  sprinkling  the  street  with  a  hose, 
and  the  water  flew  over  the  horses  and  around  them,  and  they  got 
frightened  and  jumped."  Objection  was  here  made  "  to  what  the  wit- 
ness said  about  the  horses  becoming  frightened,  because  it  is  incom- 
petent, being  an  opinion  of  the  witness."  The  objection  was  sus- 
tained. But  the  court,  ROTHROCK,  J.,  delivering  the  opinion,  said : 
"  We  think  these  rulings  of  the  court  were  erroneous.  It  is  true 
that  the  dividing  line  between  what  is  a  fact  and  what  is  an  opinion 
is  not  and  cannot  be  very  clearly  defined,  but  it  surely  is  competent 
for  a  witness  to  state  whether  the  horses  were  frightened  by  the 
stream  of  water  thrown  upon  or  around  them,  or  by  the  escape  of 
steam  from  an  engine,  or  by  being  set  upon  by  a  dog,  or  the  like ; 
the  observation  of  the  witness  as  to  the  cause  and  effect  is  a  fact, 
which  he  may  state  to  the  jury."  *  *  *  A  witness  may  state 
his  opinion  in  regard  to  sounds,  their  character,  from  what  they  pro- 
ceed, and  the  direction  from  which  they  seem  to  come ;  the  cor- 
respondence between  boots  and  footprints  ;  and  it  is  competent  for 
a  witness,  not  an  expert,  to  testify  to  the  condition  of  health  of  a 
person,  whether  ill  or  disabled,  sick  with  a  fever,  or  destitute.  A 

1  Sydleman  v.  Beckwith,  48  Conn.  9.         8  Clinton  v.  Howard,  42  Conn.  295. 


OPINION  EVIDENCE.  141 

witness  may  give  his  judgment  whether  a  person  was  intoxicated  at 
a  given  time."1 

Opinion  as  to  capacity  of  a  sewer. 

§  214.  An  action  was  brought  against  the  city  of  Indianapolis  to 
recover  damages  resulting  from  an  overflow  of  plaintiff's  lot  and 
dwelling-house.  The  defendant  assigned  for  error,  that  the  court 
below  allowed  witnesses,  not  experts,  to  give  their  opinions  as  to  the 
capacity  of  the  sewer  in  question.  FBAZER,  J.,  said :  "  The  rule  is 
that  any  witness,  not  an  expert,  who  knows  the  facts  personally, 
may  give  an  opinion  in  a  matter  not  requiring  skill,  stating  also  the 
facts  upon  which  he  bases  that  opinion.  But  in  this  case  it  can 
scarcely  be  called  an  opinion  which  the  witnesses  gave,  but  a  fact. 
They  had  seen  the  sewer  would  not  pass  the  water  in  time  of  flood. 
It  did  not  require  an  expert,  with  such  a  fact  within  his  knowledge, 
to  say  that  the  sewer  was  too  small.2 

Same —  sickness  —  soundness  of  a  slave. 

§  215.  In  Alabama  an  action  was  brought  to  recover  damages  for 
the  loss  of  a  hired  slave.  Objection  was  made  to  the  testimony  of 
non-expert  witnesses  giving  opinion  as  to  the  physicial  condition  of 
the  slave,  and  it  was  held  that  a  witness,  not  a  physician  or  midwife, 
may  testify  to  the  physical  condition  of  a  slave,  and  may  state  that 
said  slave  "  was  sick,'5  "  had  fever,"  or  "  was  pregnant."3  Another 
case  in  the  same  State  was  an  action  for  breach  of  warranty  of  the 
soundness  of  a  slave,  sold  by  defendant  at  $1,000.  On  the  trial 
plaintiff  offered  to  prove  by  one  Dennis,  that  he  (the  witness)  was 
one  of  the  appraisers  of  the  estate  of  Henry  Jones,  deceased,  and 
that  the  boy  Henry,  here  in  controversy,  was  then  appraised  as  being 
unsound,  at  $600,  being  about  one-half  of  what  he  (the  witness) 
would  have  then  said  the  boy  was  worth,  if  he  had  been  represented 
to  be  sound.  On  objection,  this  evidence  was  excluded.  This  was 
held  to  be  error,  and  that  a  witness  may  testify  to  the  fact  that  a 
slave  was  in  bad  health  and  incapacitated  for  doing  hard  work.4 

Opinion  —  breach  of  marriage  contract. 

§  216.  In  an  action  in  New  York  to  recover  damages  for  a  breach 
of  promise  of  marriage,  it  was  proposed  to  prove  by  witnesses 

1  Yahn  v.  City  of  Ottumwa,  60  Iowa,  v.  Eastwood,   14  N.   Y.  562;    State  v. 

429.     Citing  State  v.  Shinborn,  46   N.  Huxford,  47  Iowa,  16. 

H.  497;  Com.   v.   Pope,  103  Mass.  440;  *  Indianapolis  v.  Huflfer,  30  Ind.  235. 

Barker  v.  Coleman,  35  Ala.   221;  Wil-  3  Wilkinson  v.  Moseley,  30  Ala.  562. 

kinson  v.   Moseley,  30  id.  562;  People  4  Barker  v.  Coleman,  35  Ala.  221. 


142  THE  LAW  OF  IDENTIFICATION. 

whether  or  not  the  plaintiff  was  tenderly  attached  to  the  defendant. 
The  witnesses  gave  their  opinions,  founded  upon  an  attentive  obser- 
vation of  the  parties  during  the  courtship,  that  the  plaintiff  was 
sincerely  attached  to  the  defendant.  The  judges  permitted  the 
opinions  of  the  witnesses  to  go  to  the  jury  as  evidence.  On  appeal, 
the  Supreme  Court  said  :  "  It  is  true  as  a  general  rule,  that  witnesses 
are  not  allowed  to  give  their  opinions  to  the  jury;  but  there  are  ex- 
ceptions, and  we  think  this  is  one  of  them.  There  are  a  thousand 
nameless  things,  indicating  the  existence  and  degree  of  the  tender 
passion,  which  language  cannot  express.  The  opinions  of  witnesses 
on  the  subject  must  be  derived  from  a  series  of  instances,  under  their 
observation,  which  yet  they  never  would  detail  to  a  jury.1  The 
reason  given  in  the  above  opinion  has  been  said  to  be  the  true  rea- 
son why  the  opinions  of  witnesses  may  be  given  to  the  jury,  upon 
questions  not  involving  skill  or  science.  "  It  is  because  witnesses 
have  a  knowledge  of  the  thing  about  which  they  speak,  and  have 
acquired  that  knowledge  in  a  manner  which  cannot  be  communi- 
cated, or  from  facts  incapable,  in  their  very  nature,  of  being  explained 
to  others,  that  they  may  state  what  they  know  in  the  best  way  they 
can.  This  best  way  is  by  giving,  in  the  form  of  an  opinion,  that 
which  cannot  be  put  in  the  form  of  explanation  or  narrative."2 

Same  —  larceny  —  wagon  tracks. 

§  217.  In  a  case  of  larceny  in  Kansas,  the  defendant  was  indicted, 
convicted  and  sentenced  for  stealing  a  black  horse,  worth  $75. 
Among  other  testimony,  one  Avery,  a  witness  for  the  State,  testified 
that  in  his  opinion  the  defendant  Folwell's  wagon  made  the  tracks 
that  were  followed.  Defendant  moved  to  strike  out  this  testimony, 
but  the  motion  was  refused.  The  court  said  :  "  It  is  very  evident 
that  the  testimony  could  have  had  but  little  or  no  weight  with  the 
jury;  still  it  may  possibly  have  had  enough  to  make  it  necessary  to 
examine  the  question  raised.  It  is  true,  as  a  general  rule,  that  wit- 
nesses are  not  allowed  to  give  their  opinions  to  the  jury,  but  there 
are  exceptions.  In  many  cases  they  are  the  best  evidence  of  which 
the  nature  of  the  case  will  admit ;  cases  where  nothing  more  exact 
than  an  opinion  can  be  obtained.  Duration,  distance,  dimensions, 
velocity,  etc.,  are  often  to  be  proved  only  by  the  opinions  of  the 
witnesses,  depending,  as  they  do,  on  many  minute  circumstances, 
which  cannot  fully  be  detailed  by  witnesses."' 

1  M'Kee  v .  Nelson,  4  Cow.  855.  »  Cooper  v.  State,  28  Tex .  889,  per  BELL,  J. 

•  State  T.  Folwell,  14  Kans.  105. 


OPINION  EVIDENCE.  143 

Same  —  murder  —  rule  in  Massachusetts. 

§  218.  On  the  trial  of  an  indictment  in  Massachusetts  for  murder, 
the  testimony  of  persons  not  experts  was  held  to  be  admissible,  that 
hairs  on  a  club  appeared  to  the  naked  eye  to  be  human  hairs,  resem- 
bling the  hairs  of  the  deceased,  and  the  defendant  offered  evidence, 
that  five  months  after  the  alleged  homicide,  there  were  hairs  on  wood 
piles  in  the  yard  where  it  occurred  ;  and  that  the  yard  had  remained 
substantially  in  the  same  condition  during  that  period ;  held  to  be 
inadmissible.  CHAPMAN,  J.,  said :  "  The  objection  to  this  evidence 
rests  upon  the  general  principle,  that  witnesses  who  are  not  experts 
cannot  testify  to  their  opinions,  but  are  limited  to  statements  of 
fact,  and  it  is  contended  that  this  testimony  is  merely  an  expression 
of  opinion.  But  there  is  a  large  class  of  facts  in  regard  to  which 
judgment  or  opinion  is  all  that  can  be  expressed.  Such  testimony 
is  admissible  in  respect  to  the  value  of  property,  and  damages  done 
to  it.  Vandine  v.  Burpee,  13  Mete.  288 ;  Walker  v.  Boston,  8 
Cush.  279;  Dwlght  v.  Conors,  etc.,  11  Gush.  201 ;  Swanv.  County  of 
Middlesex,  101  Mass.  173.  Also  whether  a  horse  eats  well,  travels 
well,  and  appears  to  be  free  from  disease.  Spea/r  v.  Ricluirdson,  34 
N.  H.  428.  And  in  Hackett  v.  Boston,  etc.,  Ry.  Co.,  35  N.  H.  390, 
the  court  say  that,  in  most  cases  where  a  witness  is  examined  as  to 
distances,  dimensions,  weight  or  any  quality  of  the  matter  in  ques- 
tion, he  cannot  testify  except  by  the  use  of  language  which  neces- 
sarily implies  an  opinion.  Many  facts  that  we  know  through  our 
senses  are  of  this  character.'*2 

Same  —  rule  in  Tennessee. 

§  219.  The  general  rule  that  opinions  of  witnesses  are  not  com- 
petent testimony  is  subject  to  the  well-settled  exception  making  them 
admissible  as  such  in  questions  involving  personal  identity.  The 
impression  of  the  witness  must  be  based  upon  his  knowledge  of  the 
person  sought  to  be  identified,  and  while  it  is  not  necessary  that  it 
should  be  formed  at  the  time  he  saw  such  person,  yet  when  formed 
it  must  be  the  result  of  the  recollection  of  the  person  seen,  con- 
nected with  the  seeing,  and  not  after-acquired  information  from 
others.  Woodward  was  indicted  with  another  for  murder  and  as 
accessory.  Two  persons  were  near  enough  to  see  the  person  who 
did  the  killing,  and  to  see  him  run  from  the  place,  but  owing  to  the 
darkness  of  the  night,  they  could  not  distinguish  or  identify  him, 

8  Com.  v.  Dorsey,  103  Mass.  412  (1869). 


144  THE  LAW  OF  IDENTIFICATION. 

but  in  the  flight  he  met  one  Tanner,  who  was  permitted  to  give  to 
the  jury  his  impression  as  to  the  identity  of  the  defendant,  Wood- 
ward, as  the  man  who  ran  by  him  from  the  scene  of  the  homicide 
In  the  identification  of  the  accused,  Tanner's  testimony  was  material. 
It  was  insisted  that  it  was  error  to  permit  it  to  go  to  the  jury.  It  was 
held  to  be  correct,  the  Supreme  Court  holding  as  above  indicated.1 

Opinion  testimony — rule  in  several  States. 

§  220.  Upon  the  trial  of  an  indictment  for  burglary  in  Connecti- 
cut, the  State  was  allowed  to  introduce  an  almanac  for  the  purpose 
of  showing  at  what  time  the  sun  set  on  the  day  the  crime  was  alleged 
to  have  been  committed.  A  question  was  made  by  the  defense  as 
to  the  identity  of  the  prisoner  with  the  person  who  committed  the 
crime,  and  evidence  was  introduced  on  both  sides  on  this  point.  The 
judge,  in  his  charge  to  the  jury,  instructed  them  that  it  was  for  them 
to  decide  on  which  side  of  the  question  of  identity  was  the  weight 
of  evidence.  This  was  held  to  be  error  —  that  as  the  question  was 
a  vital  one  in  the  case,  this  part  of  the  charge  was  erroneous  ;  the 
jury  were  to  be  satisfied  of  his  identity  beyond  a  reasonable  doubt.2 
A  party  was  indicted  in  North  Carolina  for  arson,  the  burning  of  a 
barn.  It  was  held  that  it  was  not  necessary  that  a  witness  should 
be  an  expert  to  testify  as  to  the  identity  of  tracks ;  but  where  the 
witness  gives  reasons  for  believing  the  tracks  described  to  be  those  of 
the  accused,  the  whole  of  his  testimony  should  go  to  the  jury,  for 
them  to  say  whether  the  grounds  of  his  opinion  are  satisfactory. 
ASHE,  J.,  said :  "  His  testimony  in  such  case  can  amount  to  nothing 
more  than  his  opinion  as  to  the  correspondence.  Though  the  opinions 
of  witnesses  are  in  general  not  evidence,  yet  on  certain  subjects,  some 
classes  of  witnesses  —  experts  —  may  express  their  opinions,  and  on 
certain  other  subjects,  any  competent  witness  may  express  his  opinion 
or  belief.  It  is  competent  for  a  witness  to  express  his  opinion  as  to 
the  handwriting  of  a  party,  or  as  to  the  identity  of  a  person.  1 
Greenl.  Ev.,  440.  And  if  it  be  competent  for  him  to  give  his  opin- 
ion as  to  the  identity  of  a  person,  we  can  see  no  reason  why  he  may 
not  give  it  as  to  the  identity  of  his  footprints.  Such  evidence,  of 
course,  would  have  more  or  less  weight  with  the  jury,  according  as 
the  witness  had  had  the  means  and  opportunity  of  forming  an  ac- 
quaintance with  the  tracks  of  the  defendant.  In  one  case  the  witness 
who  was  permitted  to  testify  that  in  his  opinion  the  tracks  referred 

1  Woodward  v.  State,  4  Baxt.  (Tenn.)        *  State  v.  Morris,  47  Conn.  179. 
822. 


OPINION  EVIDENCE.  145 

to  were  those  of  the  defendant,  as  the  grounds  of  his  belief  stated 
that  the  defendant  had  lived  with  him  three  or  four  weeks,  and  worn 
an  old  pair  of  boots  of  his,  and  had  twisted  them  so  that  witness 
could  not  wear  them.  The  track  was  peculiar ;  the  left  foot  was 
the  largest ;  the  upper  leather  ran  over  the  sole  leather,  and  made  a 
sort  of  "  mashey  track."  The  bare  opinion  of  the  witness  as  to  the 
identity  of  the  track  should  have  little  weight  with  the  jury,  but 
when  this  witness  gives  his  reason  for  entertaining  the  opinion,  the 
whole  of  the  testimony  should  be  allowed  to  go  to  the  jury,  for 
them  to  say  whether  the  grounds  of  the  opinion  are  reasonable  and 
satisfactory."1 

Same  —  collision — vessels  —  distance. 

§  221.  The  owner  of  the  ship  Rhode  Island  brought  an  action  for 
damages  against  the  steamboat  Senator  resulting  from  a  collision 
between  the  vessels.  After  the  principal  witness  had  testified  con- 
cerning the  position  of  the  vessels  and  the  character  of  the  night,  he 
was  asked  whether  a  vessel  on  such  a  night  and  in  such  a  place  could 
be  seen  at  a  considerable  distance  from  a  vessel  approaching  the 
shore,  and,  if  so,  how  far?  It  was  held  that  this  question  should 
have  been  allowed.  MURRAY,  Oh.  J.,  said :  "  It  is  undoubtedly  true 
that  the  jury  must  make  up  their  minds  from  the  facts,  and  to  that 
end  the  speculative  opinions  of  witnesses  are  carefully  excluded. 
But  it  is  difficult,  in  such  a  case  as  the  present,  to  say  how  the  dark- 
ness of  the  night  could  have  been  so  brought  home  to  the  knowledge 
and  comprehension  of  the  jury,  as  to  enable  them  to  determine 
whether  the  Senator  was  in  fault,  unless  by  some  such  question 
as  the  one  proposed.  The  character  of  the  night  had  been  described, 
and  the  better  to  understand  whether  objects  could  be  easily  dis 
tinguished,  it  was  asked  whether  a  vessel,  on  such  a  night,  and  in 
such  a  place,  could  be  seen  at  a  considerable  distance  from  a  vessel 
approaching  the  shore,  and  if  so,  how  far  ?  The  question  was  direct, 
and  the  answer  would  have  been  sufficiently  certain.  The  witness 
must  have  stated  that  the  vessel  could  have  been  seen  within  some 
named  distance,  from  which  the  jury  might  have  drawn  the  infer- 
ence  of  fault."2 

Same  —  rule  in  Massachusetts  and  New  York. 

§  222.  In  the  trial  of  an  indictment  in  Massachusetts  for  burglary, 
in  breaking  and  entering  a  dwelling-house,  two  witnesses  testified 

1  State  v.  Reitz,  83  N.  C.  634.  •  Tnnia  v.  The  Senator,  4  Cal.  5. 

19 


14:6  THE  LAW  OF  IDENTIFICATION. 

that,  at  the  time  of  the  burglary,  they  identified  the  burglar  by  his 
voice,  with  the  defendant,  when  they  had  only  once  heard  him  talk. 
Defendant  requested  the  judge  to  rule  that  the  identification  was  in- 
sufficient ;  this  he  refused,  and  instructed  the  jury,  that  the  similarity 
in  the  voice  was  a  circumstance  to  be  considered  with  the  other  cir- 
cumstances in  the  case,  but  advised  them  not  to  convict  on  this  cir- 
cumstance alone.  This  was  sustained.1  In  a  New  York  case,  SUTH- 
ERLAND, J.,  said :  "  On  questions  of  science,  or  skill,  or  trade,  per- 
sons of  skill  in  those  particular  departments  are  allowed  to  give  their 
opinions  in  evidence,  but  the  rule  is  confined  to  cases  in  which,  from 
the  very  nature  of  the  subject,  facts  disconnected  from  such  opinions 
cannot  be  so  presented  to  a  jury  as  to  enable  them  to  pass  upon  the 
question  of  knowledge  and  judgment.  Thus :  a  physician  in  many 
cases  cannot  so  explain  to  a  jury  the  cause  of  a  death  or  other  serious 
injury  to  an  individual  as  to  make  the  jury  distinctly  perceive  the 
connection  between  the  cause  and  the  effect.  He  may,  therefore, 
express  an  opinion  that  the  wound  given,  or  the  poison  administered, 
produced  the  death  of  the  deceased ;  but  in  such  a  case  the  phy- 
sician must  state  the  facts  on  which  his  opinion  is  founded."2 

Weight  of  opinion  evidence  —  rule. 

§  223.  We  have  seen  that  the  opinion  of  a  witness,  whether  he 
be  an  expert  or  not,  is  not  conclusive  of  any  thing ;  that  it  decides 
nothing,  and  the  jury  is  not  bound  by  it,  nor  can  the  court  charge  the 
jury  as  to  the  weight  of  it.  In  an  action  brought  to  recover  $2,000 
by  an  attorney  for  professional  services,  which  case  came  up  to  the 
Supreme  Court  of  the  United  States,  FIELD,  J.,  said  :  "The  only 
question  presented  for  our  consideration  is,  whether  the  opinions  of 
the  attorneys  as  to  the  value  of  professional  services  rendered  were 
to  control  the  judgment  of  the  jury,  so  as  to  preclude  them  from 
the  exercise  of  their  '  own  judgment  or  ideas'  upon  the  value  of 
such  services.  That  the  court  intended  to  instruct  the  jury  to  that 
effect,  we  think  is  clear.  After  informing  them  that,  in  deter- 
mining the  value  of  the  services,  they  might  consider  their  nature, 
the  time  they  occupied,  and  the  benefit  derived  from  them ;  also, 
that  the  plaintiffs  were  entitled  to  a  reasonable  compensation  for  the 
services,  and  that  the  reasonableness  of  the  compensation  was  a  fact 
to  be  determined  from  the  evidence  —  it  proceeded  to  call  special 

'Com.  v.  Williams,  105  Mass.  68  » Jefferson  Ins.  Co.  v.  Cotheal,  7  Wend. 
(1870).  78. 


OPINION  EVIDENCE.  147 

attention  to  the  testimony  of  the  attorneys,  and  told  the  jury  that  if 
they  accorded  these  witnesses  with  truthfulness,  their  testimony 
should  have  weight,  and  the  fact  as  to  what  is  reasonable  compensa- 
tion should  be  '  determined  from  the  evidence  offered,'  and  not 
from  their  own  knowledge  or  ideas  of  the  value  of  that  class  of  ser- 
vices, and  emphasized  the  instruction  by  repetition  as  follows  :  '  You 
must  determine  the  value  of  the  services  rendered  from  the  evidence 
that  has  been  offered  before  you,  and  not  from  your  own  knowledge 
or  ideas  of  the  value  of  the  services.'  This  language  qualifies  the 
meaning  of  the  previous  part  of  the  instruction.  It  is  apparent  from 
the  context  that  in  the  words  '  evidence  offered,'  and  '  evidence 
that  has  been  offered  before  you,'  reference  was  made  to  the  expert 
testimony,  and  to  that  alone.  Taken  together,  the  charge  amounts 
to  this  :  That  while  the  jury  might  consider  the  nature  of  the  ser- 
vices and  the  time  expended  in  their  performance,  their  value  — 
that  is,  what  was  reasonable  compensation  for  them  —  was  to  be  de- 
termined exclusively  from  the  testimony  of  the  professional  wit- 
nesses." This  was  held  to  be  error.1 

Same  —  rule  in  Kansas. 

§  224.  A  similar  case  was  decided  in  Kansas  in  1866,  for  fees  claimed 
by  Stinson  &  Hurd.  It  was  there  said  :  "  Certain  lawyers  having 
testified  as  to  the  value  of  the  legal  services  rendered  by  the  plain- 
tiffs, the  court  instructed  the  jury  that  '  such  witnesses  are  supposed 
to  be  better  qualified  to  put  a  value  upon  such  services  than  the  jury, 
none  of  whom  may  have  any  personal  knowledge  of  the  nature  of 
the  business  in  which  they  have  been  performed.  Such  testimony 
is  the  guideof  the  jury,  in  finding  the  amount  justly  due,  and  in  this 
case  you  must  take  the  testimony  of  these  witnesses  and  be  governed 
by  it  in  finding  the  value  of  the  services  rendered  by  Stinson  & 
Hurd.' '  This  was  held  to  be  error.2 

Opinion  —  value  of  personalty  —  damages. 

§  225.  In  Massachusetts  it  was  held,  in  an  action  of  trover  for 
goods  attached  by  the  sheriff,  that  the  jury  properly  exercised  their 
own  judgment  and  applied  their  own  knowledge  and  experience  in 
regard  to  the  general  subject  of  inquiry  in  the  case  ;  that  the  jury 
were  not  bound  by  the  opinion  of  the  witness  ;  that  they  might  have 
taken  the  facts  testified  by  him,  as  to  the  cost,  quality  and  condition 

1  Head   v.    Hargrave,  105   U.    S     45.     211;  Patterson  v.  Boston,  20  Pick.  159; 
Citing  Anthony    v.    Stinson,  4   Kans.     Murdock  v.  Sumner,  22  id.  156. 
2  Anthony  v.  Stinson,  4  Kans.  211. 


148  THE  LAW  OF  IDENTIFICATION. 

of  the  goods  and  come  to  a  different  opinion  as  to  their  value.1  The 
same  rule  was  held  in  Illinois,  that  the  jury  were  not  bound  by  the 
opinions  of  witnesses  as  to  the  value  of  property  taken  for  public 
improvements,  in  the  exercise  of  the  right  of  eminent  domain.  That 
while  it  is  proper,  on  the  examination  of  witnesses  as  to  the  value  of 
the  condemned  property,  to  call  out  the  various  theories  upon  which 
their  opinions  are  based,  in  order  to  arrive  at  their  correctness,  the 
jury  must  finally  determine  the  question  of  value  according  to  their 
own  judgment  of  what  seems  to  be  just  and  right,  from  all  the  evi- 
dence before  them.2  Another  Illinois  case  was  an  appeal  from  the 
Circuit  Court  from  an  assessment  of  damages  for  the  right  of  way 
across  a  farm  of  one  Caldwell.  It  was  held  that,  in  estimating  the 
damages  to  the  farm,  where  there  was  a  conflict  of  evidence  as  to 
the  amount  of  real  damages  to  the  farm,  the  jury  were  justified  in 
giving  greater  weight  to  the  testimony  of  farmers  than  that  of  per- 
sons of  other  pursuits.  WALKER,  J.,  said  :  "  We  are  asked  to  reverse 
their  judgment  because  it  is  alleged  that  the  verdict  of  the  jury  is 
against  the  weight  of  evidence.  The  witnesses  estimated  the  dam- 
ages from  nothing  to  $1,200.  Those  fixing  it  at  the  highest  esti- 
mate were  farmers,  and  those  fixing  it  at  the  lowest  amount  were 
persons  engaged  in  other  pursuits.  None  of  the  witnesses  who  were 
farmers  estimated  the  damage  to  this  farm  at  even  as  low  a  sum  as 
that  fixed  by  the  jury.  There  were  four  farmers  who  estimated  the 
damage  at  more  than  the  jury  gave,  and  they  stand  wholly  unim- 
peached.  From  their  occupation  they  had  a  better  opportunity  of 
estimating  the  injury  and  inconvenience  occasioned  to  this  farmer 
by  the  construction  of  the  road,  than  mechanics  or  persons  engaged 
in  other  pursuits.  And  in  such  a  conflict  the  jury  were  justified  in 
giving  the  preference  to  their  testimony,  and  having  done  so,  we  do 
not  feel  authorized  or  even  inclined  to  find  fault  with  the  conclusion 
at  which  they  have  arrived."3 

Human  identity  —  opinion  of  witness. 

§  226.  As  we  have  seen,  the  opinions  of  witnesses  may  be  received 
in  questions  involving  personal  identity,  because  that,  like  hand- 
writing, is  at  best  but  a  matter  of  opinion,  and  that  is  all  that  should 
be  required  of  any  witness  upon  a  question  of  identity.  And  for 
this  reason  the  exception  to  the  general  rule  prevails  to  a  greater 

1  Murdock  v.  Sumner,  22  Pick.  156.  8  Jacksonville  Ky.  Co.  v.  Caldwell,  21 

»  Green  v.  Chicago,  97  111.  370.   Citing    111.  75. 
Hyde  Park  v.  Dunham,  85  id.  569. 


OPINION  EVIDENCE.  149 

extent  than  in  any  other  class  of  cases.  On  the  trial  of  an  indict- 
ment in  Tennessee,  the  opinion  of  a  witness  was  received  as  to  the 
identity  of  the  accused,  and  it  was  held  that  it  was  not  necessary  that 
it  should  be  formed  at  the  time  the  person  sought  to  be  identified 
was  seen  by  the  witness.  But  when  formed  it  must  be  the  result  of 
the  recollection  of  the  person  seen,  and  of  the  facts  connected  with 
seeing,  but  not  from  information  derived  from  others.1  The  same 
rule  prevails  in  California,  where  it  was  permitted  in  a  case  of 
robbery.2  Mr.  Wharton,  speaking  of  the  uncertainty  of  human  iden- 
tity, says  :  "  It  is  an  inference  drawn  from  a  series  of  facts,  some  of 
them  veiled,  it  may  be,  in  disguise,  and  all  of  them  more  or  less 
varied  by  circumstances.3  The  exception  to  the  general  rule  as 
above  noticed  has  been  adopted  by  many  of  our  courts,  not  only  as 
to  the  identity  of  persons,  but  as  to  things  very  generally.4 

Opinion  as  to  insanity  —  intoxication. 

§  227.  In  New  Hampshire  it  is  held  that  the  opinion  of  a  wit- 
ness, who  is  not  an  expert,  as  to  the  sanity  of  a  respondent,  is  incom- 
petent, although  found  from  observation  of  the  respondent's  ap- 
pearance and  conduct.  Any  witness  may  testify  that  a  person 
was  or  was  not  intoxicated,  or  under  the  influence  of  intoxicating 
liquors,  and  it  was  held  that  whether  or  not  there  is  such  disease  as 
dipsomania,  and  whether  a  respondent  had  that  disease,  and  whether 
acts  done  by  him  were  produced  from  such  disease,  were  questions 
of  fact  for  th  e  jury5  Dipsomania  is  not  now  regarded  as  a  distinct 
form  of  insanity.  It  is  said  to  be  one  of  the  occasional  consequences 
of  an  indulgence  in  alcoholic  drink,  and  is  the  periodical  occurrence 
of  a  violent  thirst  for  intoxicating  liquor  —  a  thirst  which  is  not  sat- 
isfied until  the  patient  drinks  one,  two  or  three  days  continuously. 
The  desire  then  subsides  and  he  may  remain  sober  for  weeks,  until 
another  attack  comes  on.  The  rule  of  course  varies  with  different 
persons,  and  perhaps  from  different  causes.  Some  will  continue  for 
a  week  or  longer  before  it  produce  nausea,  eraesis,  and  disgust ;  and 
some  go  longer  between  attacks.  The  medical  authors  are  not  fully 
agreed  in  their  description,  or  at  least  in  their  expression  as  to  the 

1  Woodward  v.  State,  4  Baxt.  (Tenn.)  v.  Howard,  42  Conn.  294;  Sydleman  v. 
322.  Beckwith,  43  id.  9;  State  v.  Folwell,  14 

2  People  v.  Rolfe,  61  Cal.  541.  Kans.    105;  Barnes  v.  Ingalls,    39  Ala. 

3  Whart.  Or.  Ev.,  §   13.    See  also  §  193;  Brink  v.  Ins.  Co.,  49  Vt.  442;  Hal- 
803,  n.  6.  lahan  v.   R.    R.    Co.,  102  N.   Y.    194; 

4  Bennett  v.   Meehan,   83  Ind.    569;  Cooper  v.  State,  23  Tex.  339. 
Com.  v..  Malone,  114  Mass.  295;  Clinton  6  State  v.  Pike,  49  N.  H.  399. 


150  THE  LAW  OF  IDENTIFICATION. 

disease.  Some  denominate  it  "  an  ungovernable  thirst  for  drink," 
others  say  it  is  simply  "  a  bad  habit  of  self-indulgence  "  or  "periodi- 
cal paroxysm  for  drink,"  which  is  about  the  same  thing.  The  gen- 
eral rule  of  evidence  excluding  the  opinion  of  witnesses,  has  its  ex- 
ceptions, which  are  about  as  well  recognized  and  settled  as  the  rule 
itself,  and  expert  testimony  is  not  the  only  exception,  but  non-pro- 
fessional witnesses  may  often  give  their  opinion,  especially  in  ques- 
tions of  identity. 

In  Missouri  in  1882,  on  the  trial  of  an  indictment  for  larceny,  in 
stealing  goods  from  a  store,  a  witness  was  permitted  to  testify  as  to 
his  opinion,  based  on  his  personal  knowledge,  as  to  the  identity  of 
the  goods  found  on  the  accused,  though  he  could  not  swear  posi- 
tively.1 Were  it  not  so,  it  would  be  often  difficult  to  identify  goods. 
Indeed  it  is  all  that  should  be  expected  of  a  witness. 

Intoxication  —  witnesses'  opinion  as  to  —  murder . 

§  228.  As  to  the  opinion  of  witnesses  upon  the  question  of  intoxi- 
cation, in  a  New  York  case  decided  in  1856.  One  Eastward  was 
indicted  jointly  with  LaRock  for  the  murder  of  Brereton.  There 
was  a  severance  and  Eastwood  was  put  on  trial  and  convicted.  The 
defendant  had  interfered  with  Brereton  on  the  road  while  driving 
cattle.  One  witness  said :  "  They  appeared  to  be  intoxicated." 
Another  said :  "  I  should  think  Eastwood  had  been  drinking  at  the 
time,  but  I  did  not  see  him  stagger."  It  was  held  to  be  competent 
to  ask  a  witness  who  saw  and  observed  him  on  the  occasion  referred 
to,  whether,  in  his  judgment,  he  was  then  under  the  influence  of  in- 
toxicating liquor ;  that  the  question  does  not  call  for  an  answer  in 
violation  of  the  general  rule  which  excludes  the  opinions  of  wit- 
nesses ;  that  a  prisoner  charged  with  murder  was  intoxicated  at  the 
time  of  the  commission  of  the  crime,  may  be  material  to  explain  his 
conduct  at  and  prior  to  that  time ;  and  also,  in  reference  to  the  de- 
sign with  which  the  act  had  been  perpetrated.  The  court  said  :  "  A 
child  six  years  old  may  answer  whether  a  man  (whom  it  has  seen) 
was  drunk  or  sober ;  it  does  not  require  science  or  opinion  to  answer 
the  question,  but  observation  merely  ;  but  the  child  could  not  prob- 
ably describe  the  conduct  of  the  man,  so  that  from  its  description, 
others  could  decide  the  question.  Whether  a  person  is  drunk  or 
sober,  or  how  far  he  was  affected  by  intoxication,  is  better  deter- 

1  State  v.  Babb,  76  Mo.  501.  Citing  State  v.  Kelly,  78  id.  608;  State  v.  Wil- 
liams, 54  id.  170. 


OPINION  EVIDENCE.  151 

mined  by  the  direct  answer  of  those  who  have  seen  him  than  by  their 
description  of  his  conduct.  Many  persons  cannot  describe  particu- 
lars ;  if  their  testimony  were  excluded,  great  injustice  would  fre- 
quently ensue." x  And  where  a  party  was  followed  by  a  crowd  and 
killed,  it  was  held  proper  to  interrogate  a  witness  who  observed  their 
operations,  whether  he  observed  or  discovered  any  difference  in  their 
purpose  among  those  composing  the  crowd  ;  this  to  ascertain  whether 
or  not  some  were  principal  actors,  and  others  accessories.  An  acces- 
sory being  one  who  stands  by  and  aids,  abets  or  assists  in  the  perpe- 
tration of  a  crime,  or  who,  not  being  present,  has  advised  and  en- 
couraged the  perpetration  of  it.  The  advice  or  encouragement  may 
be  by  words,  acts,  signs  or  motions.2 

Same  —  when  opinion  admissible. 

§  229.  The  Missouri  Supreme  Court  in  1873,  in  a  civil  action, 
held  that  opinions  of  witnesses  were  admissible,  where  the  subject 
of  injury  is  so  indefinite  and  general  in  its  nature  as  not  to  be  sus- 
ceptible of  direct  proof,  or  if  the  witness  has  had  the  means  of  per- 
sonal observation,  and  the  facts  and  circumstances  upon  which  he 
bases  his  conclusion  are  incapable  of  being  detailed  so  intelligently 
as  to  enable  any  one  except  the  observer  himself  to  form  an  intelli- 
gent conclusion  from  them.  The  action  was  brought  to  recover  a 
balance  of  $1,959.40,  for  stone  sold  and  delivered  to  defendant  at  the 
water-works  on  Compton  Hill  in  St.  Louis,  in  which  there  was  a  ver- 
dict for  the  plaintiff.  On  the  trial,  the  court  permitted  several  wit- 
nesses, against  the  objection  of  defendant,  to  give  their  estimate  of 
the  average  depth  or  thickness  of  the  broken  stone  used  in  the  said 
work.  The  court  held  that  such  ruling  of  the  court  below  was  cor- 
rect.3 In  a  former  case  in  the  same  State,  in  an  action  for  grading 
for  a  railroad,  the  court  held  that  a  witness  can  only  be  allowed  to 
detail  facts,  and  not  mere  opinions,  when  such  opinions  are  not  based 
upon  facts.  But  in  estimating  the  cost  of  work,  etc.,  he  must  give 
the  facts,  and  may  then  be  allowed  to  state  what  his  estimate  is, 
upon  the  facts  detailed.4  In  Texas  it  was  held  to  be  competent  to 
prove  the  number  of  stock  of  a  certain  brand  running  in  a  range  by 
the  opinion  of  stock-men  accustomed  to  ride  in  quest  of  other  stock 
through  the  same  range,  if  it  be  the  best  evidence  within  reach  of 
the  party  offering  it,  though  the  witnesses  may  have  had  no  interest 
in  nor  charge  of  the  stock  in  question.5  In  Michigan  it  was  held 

1  People  v.  Eastwood,  14  N.  Y.  562.  4  Fitzgerald  v.  Hayward,  50  Mo.  517. 

2  Brennan  v.  People,  15  111.  511.  5  Albright  v.  Corley,  40  Tex.  105. 

3  Eyerman  v.  Sheehan,  52  Mo.  221. 


152  THE  LAW  OF  IDENTIFICATION. 

in  an  action  of  trespass  that  merely  seeing  the  mortar  of  a  wall  dis- 
integrated and  destroyed  by  water  would  not  alone  justify  an  ex- 
pression of  opinion  whence  the  water  came  ;  but  if  there  were  other 
facts  indicating  that  the  water  came  from  a  particular  direction,  or 
must  have  been  applied  in  a  particular  way,  it  would  be  competent, 
along  with  the  evidence  of  the  indications  themselves,  to  admit 
opinions  upon  them.2  The  opinions  must  be  based  upon  facts,  and 
those  facts  must  have  come  under  the  observation  of  the  witness. 

Murder  —  shooting  —  opinion. 

§  230.  In  a  trial  for  murder  in  Texas,  one  Cooper  was  indicted 
and  convicted  for  the  killing  of  Forston  in  1855.  One  of  the  wit- 
nesses (Slater),  who  was  not  a  professional  man,  so  far  as  disclosed 
by  the  record,  stated  to  the  jury  as  follows  :  "  I  think  the  man  who 
shot,  must  have  been  on  a  level  with  Forston,  and  I  do  not  believe 
that  a  man  on  the  ground  could  have  shot  Forston  as  he  was  shot." 
Dr.  Oakes,  a  physician,  who  assisted  in  the  examination  of  the  body 
of  the  deceased,  testified :  "  I  think  the  man  who  shot  must  have  been 
on  horse-back,  or  some  other  elevation."  Two  other  physicians,  Dr. 
Phillips  and  Dr.  Cage,  gave  the  same  testimony.  The  court  reversed 
the  case  and  remanded  it  for  anew  trial,  saying,  among  other  things : 
"  We  are  of  opinion  that  the  court  below  erred  in  permitting  the 
witnesses  to  state  their  opinion  or  belief  to  the  jury,  and  we  cannot 
perceive  that  the  matter  about  which  the  opinions  of  the  witnesses 
were  given  was  a  matter  of  science  or  of  skill,  which  made  it  proper 
to  receive  the  opinions  of  medical  men  in  reference  to  it,  any  more 
than  the  opinion  of  the  witness  Slater,  who  is  not  shown  to  be  a 
professional  man.3  In  the  opinion  of  the  court,  reference  is  made 
to  a  New  Yor  k  case,5  in  which  SUTHERLAND,  J.,  said  :  "  On  ques- 
tions of  science,  or  skill,  or  trade,  persons  of  skill  in  those  particular 
departments  are  allowed  to  give  their  opinions  in  evidence ;  but  the 
rule  is  confined  to  cases  in  which,  from  the  very  nature  of  the  subject, 
facts,  disconnected  from  such  opinions,  cannot  be  so  presented  to  a 
jury,  as  to  enable  them  to  pass  upon  the  question  with  the  requisite 
knowledge  and  judgment.  Thus,  a  physician,  in  many  cases,  can- 
not so  explain  to  a  jury  the  cause  of  the  death,  or  other  serious  in- 
jury of  an  individual,  as  to  make  the  jury  distinctly  perceive  the 
connection  between  the  cause  and  the  effect.  He  may,  therefore, 

1  Underwood   v.  Waldron,    83   Mich.     But    see  McCann  v.  State,  18  S.  &  M. 
282.  (Miss.)  471. 

9  Cooper  v.  State,  28  Ter.  881,  886.        8  Jefferson    Ins.    Co.    v.    Cotheal,    7 

Wend.  78. 


OPINION  EVIDENCE.  153 

express  an  opinion  that  the  wound  given,  or  the  poison  administered, 
produced  the  death  of  the  deceased ;  but,  in  such  case,  the  physician 
must  state  the  facts  on  which  his  opinion  is  founded.1  It  would 
seem  that  the  rule  laid  down  in  this  Texas  case  may  be  doubtful.  In 
a  case  depending  upon  circumstantial  evidence,  what  may  tend  to 
elucidate  the  transaction  should  be  admitted.* 

J  McCann  v.  State,  13  S.  &  M.  (Miss.)    Texas  case  above,  and  the  testimony  was 
471,  in  which  the  precise  question  was    held  to  be  competent, 
presented,  that  we  have  seen  in  the 

*In  Com.  v.  Sturtivant,  117  Mass.  132,  ENDICOTT,  J.,  said:  "There  was  evidence  tending  to 
show  that  there  were  three  persons,  Simon  Sturtivant ,  Thomas  Sturtivant  and  Mary  Buckley, 
killed  at  the  same  time,  by  the  same  weapon.  The  government  had  the  right  to  lay  before  the 
jury  the  whole  of  the  transaction  of  which  the  murder  of  Simon  Sturtivant  was  a  part.  For  this 
purpose  the  testimony  of  the  physician,  as  to  the  autopsy  of  Mary  Buckley,  was  competent. 
*  *  *  The  exception  to  the  rule  that  witnesses  cannot  give  opinions  is  not  confined  to  the 
evidence  of  experts  testifying  on  subjects  requiring  special  knowledge,  skill  or  learning,  but  in- 
cludes the  evidence  of  common  observers,  testifying  to  the  results  of  their  observation  made  at 
the  time  in  regard  to  common  appearances  of  facts,  and  the  condition  of  things  which  cannot 
be  reproduced  and  made  palpable  to  a  jury .  Such  evidence  has  been  said  to  be  competent  from 
necessity,  on  the  same  ground  as  the  testimony  of  experts,  as  the  only  method  of  proving  cer- 
tain facts  essential  to  the  proper  administration  of  justice.  Nor  is  a  mere  opinion  which  is 
thus  given  by  witnesses,  but  a  conclusion  of  facts  to  which  his  judgment,  observation,  and  com- 
mon knowledge  has  led  him  in  regard  to  the  subject-matter  which  requires  no  special  learning 
or  experiment,  but  which  is  within  the  knowledge  of  men  in  general.  Every  person  is  entitled 
to  express  an  opinion  on  a  question  of  identity  as  applied  to  persons,  things  inanimate  or  hand- 
writing, and  may  give  his  judgment  in  regard  to  the  size,  color,  or  weight  of  objects,  and  may 
estimate  time  and  distance.  He  may  state  his  opinion  in  regard  to  sounds,  their  character, 
from  what  they  proceed,  and  the  direction  from  which  they  seem  to  proceed.  State  v.  Shin- 
born,  46  N.  H.  497.  The  correspondence  between  boots  and  footprints  is  a  matter  requiring  no 
peculiar  knowledge,  and  to  which  any  person  can  testify.  Com.  v.  Pope,  103  Mass.  440. 

So  a  person  not  an  expert  may  give  his  opinion  whether  certain  hairs  are  human  hairs. 
Com.  v.  Dorsey,  103  Mass.  412.  And  a  witness  may  state  what  he  understands  by  certain 
"expressions,  gestures  and  intonations,"  and  to  whom  they  were  applied,  otherwise  the  jury 
could  not  fully  understand  their  meaning.  Leonard  v.  Allen,  11  Cush.  241.  In  this  connection 
may  be  noted  a  large  class  of  cases,  where,  from  certain  appearances,  more  or  less  difficult  to 
describe  in  words,  witnesses  have  been  permitted  to  state  their  conclusions  in  relation  to  indica- 
tions of  disease  or  health,  and  the  condition  or  quality  of  animals  or  persons.  As  when  a  wit- 
ness testifies  that  a  horse's  foot  appeared  to  be  diseased,  he  states  a  matter  of  fact,  open  to  the 
observation  of  common  men.  Willis  v.  Quimby,  31  N.  H.  485.  And  it  is  proper  for  a  witness  to 
give  his  opinion  that  a  horse  appeared  to  be  sulky  and  not  frightened  at  the  time  of  an  accident. 
Whittier  v.  Franklin,  46  id.  23.  Or  he  may  testify  as  to  the  qualities  and  appearance  of  a 
horse.  State  v.  Avery,  44  id.  393.  In  Currier  v  Boston  &  Maine  Railroad,  34  id.  498,  it  is 
said  that  the  question  whether  there  was  hard  pan  in  an  excavation  does  not  ask  for  an  opinion, 
but  seeks  for  facts  within  the  knowledge  of  the  witness,  and  which  knowledge  may  be  obtained 
by  common  observation.  It  is  competent  for  a  witness  to  testify  to  the  condition  of  health  of  a 
person,  and  that  he  is  ill  or  disabled,  or  has  a  fever,  or  is  destitute  and  in  need  of  relief.  Parker 
v.  Boston  &  Hingham  Steamboat  Co.,  109  Mass.  449;  Wilkinson  v.  Moseley,  30  Ala.  562;  Barker  v. 
Coleman,  35  id.  221;  Autauga  County  v.  Davis,  32  id.  703.  And  one  may  testify  that  another 
acted  as  if  she  felt  very  sad.  Culver  v.  Dwight,  6  Gray,  444.  So  those  who  have  observed  the 
relations  and  conduct  of  two  persons  to  each  other  may  testify  whether,  in  their  opinion,  one 
was  attached  to  the  other.  And  in  McKee  v.  Nelson,  4  Cow.  355,  the  court  say:  "The  opinion 
of  witnesses  on  this  subject  must  be  derived  from  a  series  of  instances  passing  under  their  ob- 
servation, which  yet  they  never  could  detail  to  a  jury."  See  Trelawney  v.  Colman,  2  Stark.  191. 
A  witness  may  also  give  his  judgment  whether  a  person  was  intoxicated  at  a  given  time.  People 
v.  Eastwood,  14  N.  Y.  562.  Or  whether  he  noticed  any  change  in  the  intelligence  or  under- 
standing, or  any  want  of  coherence  in  the  remarks  of  another.  Barker  v.  Comins,  110  Mass.  477; 
Nash  v.  Hunt,  116  id.  237 

In  Steamboat  Clipper  v.  Logan,  18  Ohio,  375,  it  was  held  that  a  person  who  had  been  a  cap- 

20 


154  THE  LAW  OF  IDENTIFICATION. 

Opinion  —  circumstantial  evidence  —  identity. 

§  231.  In  a  case  decided  in  Alabama  in  1853,  it  was  held  that,  in 
a  trial  for  murder,  a  witness  may  state  his  "  opinion  as  to  the  time 
of  the  day "  when  an  occurrence  took  place ;  and  also  as  to  the 
length  of  time  which  may  have  elapsed  between  the  happening  of 
two  events.  Campbell  was  indicted  for  the  murder  of  Martha  Gar- 
rett,  and  was  convicted  and  sentenced  to  the  penitentiary  for  life  ; 
the  trial  lasting  two  weeks.  On  Sunday,  December  3,  1850,  the  de- 
ceased left  her  mother's  house  (she  was  aged  twelve  years,  her 
mother  was  a  widow),  to  attend  Sabbath-school  in  the  court-house. 
On  the  next  morning  her  dead  body  was  found  in  a  dry  branch  with 
her  throat  cut,  and  many  bruises  on  her  body,  her  Bible,  hymn-book 
and  handkerchief  lying  within  about  eight  inches  of  her  body.  She 
left  the  Sabbath-school  and  started  home  at  eleven  o'clock,  stopping 
three  or  four  minutes  at  Mrs.  Martin's  house.  The  body  was  found 
about  nine  hundred  yards  from  the  court-house.  The  evidence  tend- 
ing to  connect  the  prisoner  with  the  murder  was  circumstantial,  and 
consisted  also  of  confessions  of  guilt  made  by  him  to  Edward  Stiff. 
The  evening  before,  the  accused  had  conversed  with  one  West  about 
the  purchase  of  a  watch,  and  that  "West  should  bring  the  watch  to 
him  the  next  morning  (Sunday) ;  "West  failed  to  bring  it,  and  he 
spoke  to  several  persons  of  his  intention  to  go  to  Mrs.  Covington's 
for  it,  where  West  lived,  about  a  mile  from  the  village  of  Centre, 
near  the  residence  of  deceased.  When  the  Sabbath-school  adjourned, 
the  accused  was  at  Allen's  tavern,  near  enough  to  see  the  adjourn- 
ment, he  borrowed  a  horse  from  Street  and  left  the  town  at  eleven 
o'clock ;  went  to  Mrs.  Covington's ;  remained  about  five  minutes. 
Horse's  tracks  were  found,  diverging  from  the  Centre  road  to  Mrs. 
Covington's,  and  extending  in  the  direction  of  the  place  where  the 
body  was  found,  and  the  evidence  tended  to  show  that  these  were 
the  tracks  of  the  horse  which  the  accused  rode ;  and  that  a  water 
pool,  between  Mrs.  Covington's  and  where  the  body  was  found,  was 
discolored  with  blood  the  day  after  the  murder,  and  that  the  heel  of 
the  defendant's  boot  corresponded  in  size  with  tracks  made  near  the 

tain  and  engineer  of  a  steamboat,  having  examined  a  boat  after  injury  by  collision,  may  state 
his  opinion  as  to  the  direction  from  which  the  boat  was  struck  at  the  time  of  the  collision. 
There  was  no  evidence  that  the  witness  had  any  special  knowledge  in  regard  to  collisions, 
through  observation  or  experiment;  and  the  court  does  not  rest  the  decision  on  the  ground  that 
the  witness  was  an  expert:  but  says  there  is  "  no  objection  to  calling  these  men  experts,  if  the 
name  will  render  their  testimony  more  unexceptionable;  but  it  Is  not  true  as  a  legal  proposition 
that  no  one  but  an  expert  can  give  an  opinion  to  a  Jury.  From  the  necessity  of  the  case,  testi- 
mony must  occasionally  be  a  compound  of  fact  and  opinion."  And  the  court  say  they  can  give 
no  better  illustration  of  their  meaning  than  by  the  use  of  the  language  in  McKee  v.  Nelson,  a 
portion  of  which  la  quoted  above. 


OPINION  EVIDENCE.  15& 

edge  of  the  pool.     There  was  much  conflicting  testimony,  and  many 
exceptions  taken,  but  the  conviction  was  affirmed.1* 

1  Campbell  v.  State,  23  Ala.  44. 

*  In  Campbell  v.  State,  supra,  CHILTON,  C.  J.,  said:  "Joseph  C.  Street  was  allowed  to  give '/lis 
opinion  '  as  to  the  time  of  day  the  prisoner  left  Centre ;  the  witness  stated  that  he  had  110  time 
piece.  This  evidence  was  admissible.  Every  person  of  ordinary  perception  and  observation 
must  be  regarded  as  capable  of  giving  an  opinion  upon  a  matter  of  this  nature  —  a  matter  upon 
which  every  man's  knowledge  and  experience  are  supposed  to  qualify  him  to  approximate  a 
correct  conclusion.  We  apprehend  no  case  can  be  found  asserting  a  different  doctrine.  Indeed 
we  know  of  no  case  where  the  point  was  ever  called  in  question,  and  yet  it  is  one  involved  in 
almost  every  trial.  The  same  principle  covers  the  objection  to  the  witness'  testifying  as  to 
the  length  of  time  the  prisoner  was  absent  from  Centre,  the  witness  having  seen  him  when  he 
left  and  when  he  returned.  The  shoes  of  the  horse  which  the  prisoner  rode  were  taken  from 
his  fore  feet,  the  horse  having  no  shoes  on  his  hind  feet,  and  were  applied  to  the  track  leading 
from  Centre  to  Mrs.  Covington's,  in  the  direction  of  where  the  body  of  the  deceased  was  found ;  and 
a  witness  who  saw  them  thus  applied  was  allowed  to  depose  that  "  they  seemed  to  fit  in  every 
particular."  The  prisoner's  counsel  contends,  that,  before  this  could  be  made  legal  evidence, 
it  must  be  shown  that  the  shoes  fitted  the  horse's  foot.  This  was  a  circumstance,  doubtless, 
about  which  he  might  well  have  cross-examined  the  witness,  to  ascertain  whether  the  shoes 
fitted  the  indentation  made  by  the  horse's  hoof,  or  by  the  shoe  in  the  earth.  In  the  absence  of 
proof  to  the  contrary, we  must  presume  that,  in  fitting  the  shoes  to  the  track,  they  were  applied 
to  the  tracks  which  the  shoes  made;  and  in  this  view  the  proof  was  not  Only  legal,  but  const! 
tuted  a  circumstance  which  became  of  importance  in  pointing  out  the  rider  as  the  guilty  agent. 
Asa  Allen,  the  proprietor  of  >  the  tavern  from  which  the  prisoner  started  in  Centre,  was  al- 
lowed to  testify  that  the  prisoner  "occasionally  visited  his  house,  but  not  as  often  as  others." 
This  was  objected  to  as  irrelevant.  *  *  *  It  seems  to  be  well  settled  that,  if  no  presumption 
is  to  be  drawn  from  the  circumstances  offered  in  evidence,  it  ought  not  properly  to  have  any 
weight  upon  the  minds  of  the  jury,  and  the  court  should  exclude  it.—  1  Phil.  Ev.  (3d  ed.)  460. 
Circumstances  may  be  minute,  and,  considered  separately,  of  very  little  importance,  shedding 
but  a  dim  ray  of  light  upon  the  transaction  sought  to  be  elucidated;  yet,  when  grouped  together 
and  considered  in  the  aggregate,  they  may  constitute  a  chain  of  evidence  which  draws  the  mind 
to  a  very  satisfactory  conclusion.  An  illustration  of  this  is  furnished  by  the  case  of  Mendum 
v.  Com.,  6  Rand.  704.  The  defendant  was  indicted  for  murder,  committed  by  stabbing 
with  a  dirk.  It  appeared  that  a  dirk  without  a  cap  had  been  found  secreted  near  the  place  of 
the  murder;  and  the  cap  of  the  dirk,  engraved  J.  H.,  was  handed  to  a  witness,  by  a  negro,  a 
mile  and  a  half  from  the  place,  but  how  the  negro  came  by  it  no  one  could  tell .  The  handle  was 
engraved  with  the  letters  J.  H. ;  and  it  appeared  that  some  sixteen  or  seventeen  years  before, 
a  witness  purchased  a  dirk,  with  this  engraving  from  James  Hickman,  the  half-brother  of  the 
prisoner;  that  Hickman  had  since  died,  and  the  prisoner  had  admitted  that  a  dirk  was 
the  only  part  of  Hickman's  property  he  had  received.  The  witness  who  heard  him  make 
this  admission  saw  a  dirk  in  his  hands,  with  J.  H.  engraved  on  the  handle,  but  could  no  further 
identify  it  with  the  one  now  produced.  The  dirk  found  secreted  was,  from  its  general  appear- 
ance, identified  as  the  one  produced  on  trial,  and  the  cap  produced  by  the  negro  apparently 
fitted  the  handle.  The  prisoner  had,  before  the  murder,  lent  a  dirk,  not  identified  on  the  trial, 
which  was  returned  to  him  before  the  murder  was  committed.  There  was  no  proof  that  the 
prisoner  had  ever  been  at  or  near  the  place  of  the  murder.  These  circumstances  were  allowed 
to  go  to  the  jury,  as  evidence  that  the  dirk  found  belonged  to  the  prisoner,  and  they  were 
told  that  if  they  had  no  doubt  of  its  being  his  property,  then  the  prisoner's  dirk  so  found  made 
one  circumstance  to  be  weighed  with  others.  Tbwannotators  upon  Phillips  (Cowen  &  Hill  3d 
ed.,  vol.  4,  p.  598,'n.  307),  to  commenting  on  this  case,  say:  "  Now,  it  is  obvious  how  perfectly 
slight,  and  utterly  inconclusive,  any  one,  or  any  two  or  three,  of  these  circumstances  must  have 
been;  yet  all  being  combined,  the  result  of  the  trial  (a  verdict  of  guilty)  shows  that  the  jury  felt 
safe  in  acting  upon  them,  as  having  no  doubt."  So,  also,  the  conduct  of  the  prisoner,  his  situ- 
ation and  locality,  the  opportunities  he  had  of  knowing  when  the  deceased  left  the  school,  and 
whether  his  being  found  in  that  position  at  the  particular  time  was  or  not  an  unusual  occur- 
rence with  him,  are  all  circumstances  very  weak  in  themselves,  yet  not  so  wholly  foreign  from 
the  mam  inquiry  as  to  justify  their  rejection.  Every  thing  calculated  to  elucidate  the  tran- 
saction is  admissible,  since  the  conclusion  depends  upon  the  number  of  links,  which  alone  are 
weak,  but,  taken  together,  are  strong  and  able  to  conclude.  McCann  v.  The  State,  13  Smedes 
&  Marsh.  471." 


CHAPTER  VII. 


MURDER  —  IDENTIFICATION. 


SEC. 

232.  Identity  of  deceased  —  prisoner  — 

corpus  delicti. 

233.  Personal  identity  —  prisoner  —  di- 

mensions. 

234.  Same  —  identity  in  the  night-time. 

235.  Murder  —  identity  —  bones      and 

shoes. 

236.  Murder  —  identity  of  deceased  — 

New  York  statute. 

237.  Murder  —  administering  poison. 

238.  Identity  by  occupation  —  killed  the 

barber. 

239.  Same  —  when  the  evidence  does  not 

identify. 

240.  Murder  —  blood-stains  on  a  shirt  — 

identity. 

241.  Same  —  slave    indicted  —  identity 

of  pass. 

242.  Murder  —  by  one  of  two  or  more 

persons. 

243.  Of  accused  —  murder  —  larceny. 

244.  Same  —  robbery  —  evidence. 

245.  Of  child  murdered  —  rule  in  Eng- 

land. 

246.  Identity  —  murder  —  head  of  mur- 

dered man. 

247.  Webster's  trial  —  identity  of   the 

deceased. 

248.  Homicide  —  identity    of    the    de- 

ceased. 

249.  Decomposition  of  bodies — presump- 

tion. 

250.  Murder — alibi — opinion  —  circum- 

stances — teeth. 

251.  Teeth  as  a  means  of  identity  — 

age. 

252.  Of  dead  body  or  its  remains. 

253.  Dead  body  burnt  —  proof  of  corpus 

delicti. 

254.  Same  —  strictness  in  proof  of  cor - 

pus  delicti. 

255.  Dead  body  found  in  the  water  — 

death  by  drowning. 

256.  Body  exhumed  three  times  —  iden- 

tified by  the  teeth. 

257.  Artificial     teeth  —  identity     after 

eleven  years. 

258.  Murder  —  identity  of  deceased  by 

name. 

259.  Same  — initials  — rule  in  Georgia. 

260.  Same  —  murder  —  rule  in  Texas. 


SEC. 

261 .  Same  —  assault  and  battery  —  rale 

in  Texas. 

262.  Murder  —  blood    spots  on  boards 

identified. 

263.  Same  —  tracks  and  a  mask  found. 

264.  Identity  of  window  —  skeleton  — 

murder  trials. 

265.  Anarchists'  trial — dynamite  bombs 

—  comparison  —  identity. 

266.  Dress  —  a  circumstance  of  human 

identity. 

267.  Murder  —  pistol  —  examined     by 

jurors. 

268.  Same  —  opinion  evidence  —  rule  in 

Texas. 

269.  Killing  with  a  dirk  —  identity  of 

weapon. 

270.  Murder  —  circumstance  —  suspic- 

ion —  insufficiency. 

271.  Same  —  circumstances    may   mis- 

lead —  caution. 

272.  Murder  for  interest  in  an  estate. 

273.  Murder  —  indication   of   a  violent 

death  —  identity . 

274.  Corpus    delicti  —  identification    of 

the  dead. 

275.  Same  —  death  by  poisoning. 

276.  Identity     of     deceased  —  opinion 

evidence. 

277.  Footprints  establishing  the  fact  of 

murder. 

278.  Footprints  as  evidence  of  identifi- 

cation . 

279.  Footprints  —  tracks  —  murder  — 

rule  of  evidence. 

280.  Impressions  made  by  clothing. 

281.  Firearms  —  proximity  —  direction 

—  rule  as  to. 

282.  Infanticide — birth  — death  —  what 

amounts  to. 

283.  Of    the    deceased  —  confession  — 

identity. 

284.  Corpus  delicti  —  how    it    may    be 

proved. 

285.  Circumstances  —  remote  and  proxi- 

mate. 

286.  Death  —  the    result    of     criminal 

agency. 

287.  Fatal  wound  —  dying-  condition  — 

identity 


MURDEK  —  IDENTIFICATION.  157 

Identity  of  deceased  —  prisoner  —  corpus  delicti. 

§  232.  In  the  trial  of  an  indictment  for  murder,  the  first  step  is  to 
prove  the  corpus  delicti,  without  which  there  can  be  no  conviction.1 
But  it  is  not  necessary  in  all  cases  that  any  witness  has  actually  seen 
the  deceased  after  death,  because  in  some  cases  and  in  some  circum- 
stances it  may  be  impossible,  as  in  one  case  in  Massachusetts,2  and 
another  case  in  North  Carolina.3  The  corpus  delicti  in  these  cases 
was  established  beyond  all  doubt,  by  circumstantial  evidence.  But 
in  many  cases  of  assassination  where  the  dead  body  is  found,  the 
identification  of  it  presents  a  most  difficult  question  for  the  court  and 
jury,  one  of  which  we  now  propose  to  examine.  The  corpus  delicti 
being  established  so  far  as  to  identify  the  deceased,  the  next  step  is 
to  identify  the  accused  as  the  perpetrator  of  the  crime.  This,  as  a 
rule,  in  such  cases,  must  be  done  by  circumstantial  evidence,  and 
may  be  done  in  many  ways,  as  each  case  has  its  own  peculiar  circum- 
stances, and  often  involves  the  identity  of  other  things,  such  as 
tracks,  weapons,  clothing,  blood-stains  and  other  evidences.  It  must 
be  remembered  that  identification  of  both  persons  and  things  is 
generally  established  either  by  circumstantial  or  opinion  evidence, 
and  while  the  former  rule  admitted  the  opinion  of  none  but  experts, 
the  exception  to  that  rule,  especially  in  questions  of  identity,  is  now 
as  well  recognized  as  the  rule  itself,  as  we  have  just  seen,  and  non-ex- 
pert testimony  is  received  on  questions  of  identity,  but  the  witness  is 
required  to  give  the  facts  upon  which  he  bases  his  opinion.4  It  will 
be  observed  that  the  writer  has  omitted  the  cases  of  death  by  poison- 
ing and  drowning  —  at  least  they  are  not  discussed ;  they  are  intri- 
cate subjects,  and  belong  to  another  science. 

Personal  identity —  prisoner — dimensions. 

§  233.  In  the  trial  of  Barbot  in  England  for  the  murder  of  Mills,5 
the  principal  circumstance  relied  upon  for  the  identification  of  the 
prisoner  was  the  diminutiveness  of  his  person,  by  a  party  who  had 
seen  him  in  a  canoe,  in  prison  and  in  court.  The  matter  of  the  size 

1  People  v.  Palmer,  109  N.  Y.  110;  252;  People  v.  Eastwood,  14  N.  Y.  562; 

Pitts  v.  State,  43  Miss.  472;  Taylor  v.  Linsday  v.  People,  63  id.  143;  Green- 

State,  3  Tex.  App.  169;  State  v.  Wil-  field  v.  People,  85  id.  75;  Colee  v.  State, 

liams.  7  Jones  (N.  C.),  446.  75  Ind.  511;  Cooper  v.  State,  53  Miss. 

s  Webster's  case,  Bemis  Rep.  80,  84,  393;  Young  v.  State,  68  Ala.  569;  Com. 

85,  87.  v.  Pope,  103  Mass.  440;  State  v.  Shin- 

3  State  v.  Williams,  7  Jones  (N.  C.),  born,  46  N.  H.  497;  Com.  v.  Dorsey,  103 
446.  Mass.  412;  Cooper  v.  State,  23  Tex.  339. 

4  State  v.  Vittum,  9  N.  H.  519;  People  5  Rex  v.  Barbot,  18  State  Trials,  1267- 
v.  Rolfe,  61  Cal.  541;  Goodwin  v.  State,  1276. 

96  Ind.  551 ;  Com.  v.  Owens,  114  Mass. 


158  THE  LAW  OF  IDENTIFICATION. 

of  a  person  is  what  generally  makes  the  first  and  most  durable  im- 
pression (except  perhaps  the  clothing)  which,  more  or  less,  attracts  at- 
tention and  impresses  the  mind.  When  the  senses  are  directed 
toward  a  particular  person,  and  especially  where  the  person  is  un- 
usually large  or  small,  or  if  he  is  above  or  below  the  medium  height, 
that  fact  will  attract  the  attention  and  impress  the  memory ;  the  im- 
pression is  instantaneous  and  lasting.  It  must  always  be  visible 
where  there  is  even  light  enough  to  observe  the  outlines  of  the  per- 
son. There  are  then  upon  closer  observation  many  peculiarities  in 
the  person's  appearance ;  it  may  be  lameness,  peculiar  gait,  carrying 
the  head  to  one  side,  peculiar  hair,  as  to  color  and  style  of  wearing 
it ;  color  and  expression  of  the  eyes,  the  want  of  an  eye,  or  front 
tooth,  scars  on  the  face,  any  deformity,  or  aiiy  other  physical  defect 
or  mutilation.  In  BrooUs  case,1  one  of  the  main  circumstances 
relied  upon  for  the  identification  of  the  prisoner  by  the  witness  was 
his  size,  and  this  was  seen  only  by  a  light  produced  by  striking  some- 
thing like  a  sword  on  a  stone,  which  produced  a  flash  very  near  the 
face  of  the  prisoner. 

Same  —  identity  in  the  night-time. 

§  234:.  One  Howe  was  indicted  in  New  York  for  murder.  The 
prisoner  was  observed,  by  persons  who  saw  him  a  short  time  before 
the  homicide,  carrying  something  under  his  overcoat,  like  a  stick, 
and  seemed  to  act  in  a  very  strange  manner.  A  man  about  his  size 
passed  one  of  the  witnesses  about  midnight,  going  toward  the  house 
of  the  deceased,  on  horse-back;  and  about  one  hour  and  a  half  later, 
a  man  came  riding  in  great  haste  going  for  the  doctor;  soon  there- 
after, upon  going  to  defendant's  stable,  one  of  his  horses  was  found 
to  be  wet  and  smoking,  as  if  he  had  been  lately  ridden,  and  upon 
search  being  made,  a  short  rifle  was  found  concealed  in  the  prisoner's 
house.2 

Murder  —  identity  —  bones  and  shoes. 

§  235.  One  Clewes  was  indicted  in  England,  for  the  murder  of 
Heramings  on  June  25, 1806,  by  striking  on  the  head  with  a  "  blood- 
stick."  It  was  a  peculiar  case.  It  appeared  that  great  enmity  ex- 
isted between  Mr.  Parker,  the  rector,  and  his  parishioners,  and  that 
the  prisoner  had  used  expressions  of  enmity  toward  Mr.  Parker, 
and  said  he  would  give  £50  to  have  him  shot.  Mr.  Parker  was 

1  Rex  v.  Brook,  81  State  Trials,  1124.        2  People  v.  How,  2  Wheel.  Cr.  Cas. 

417. 


M  URDER  —  IDENTIFICATION.  159 

shot  by  Hemmings,  (deceased)  who  was  detected  in  the  act;  and  it  was 
important  to  prove  that  the  persons  who  had  employed  him  to  murder 
Mr.  Parker,  fearing  discovery,  had  themselves  murdered  Hemmings, 
whose  bones,  on  December  28,  1829,  were  found  buried  in  a  barn, 
which  had  been  occupied  in  1806  by  the  prisoner.  The  finding  of  the 
bones  was  proved,  and  the  wife  of  Hemmings  identified  a  carpenter's 
rule,  the  remains  of  a  pair  of  shoes,  which  were  found  at  the  place 
where  the  bones  were  discovered,  and  she  also  identified  the  skull  of 
the  deceased  by  something  remarkable  about  the  teeth.  Evidence  was 
also  given  of  various  declarations  of  the  prisoner,  showing  that  he 
entertained  malice  against  Mr.  Parker.  Evidence  was  then  received, 
that  the  prisoner  and  others  employed  Hemmings  to  kill  Mr.  Parker, 
and  that  he  being  delegated,  said  LITTLEDA.LE,  J.,  "  the  prisoner  and 
others  then  murdered  Hemmings  to  prevent  a  discovery  of  their  own 
guilt.  Now,  to  ascertain  whether  or  not  this  was  so,  in  point  of  fact, 
it  is  necessary  that  I  should  receive  evidence  respecting  the  murder 
of  Mr.  Parker."  And  strange  enough  he  was  acquitted,  but  it  was 
for  want  of  proof  that  he  did  actually  participate.1 

Murder — identity  of  deceased  —  New  York  statute. 

§  236.  The  Penal  Code  of  New  York  seems  to  have  established 
a  new  rule  of  evidence  in  murder  cases.  This  Code  (§  181)  prohibits 
the  conviction  "  of  any  one  of  murder  or  manslaughter,  unless  the 
death  of  the  person  alleged  to  have  been  killed,  and  the  fact  of  kill- 
ing as  alleged,  are  each  established  as  independent  facts,  the  former 
by  direct  proof  and  the  latter  by  proof  beyond  a  reasonable  doubt." 
The  court,  in  construing  this  extraordinary  statute,  held  that  it  did 
not  require  direct  proof  of  the  identity  of  the  victim,  but  only  of  the 
death.  That  identity  was  not  included  in  the  corpus  delicti,  but  is 
left  open  to  indirect  circumstantial  evidence.  An  important  case 
tried  under  this  statute  was  an  indictment  of  Palmer  for  the  murder 
of  Peter  Bernard,  in  which  he  was  found  guilty  of  murder  in  the 
second  degree.  There  being  no  direct  proof,  the  circumstances, 
briefly  given,  may  illustrate  the  difficulty  under  this  very  singular 
statute.  It  was  sought  to  establish  the  identity  of  deceased  by  cir- 
cumstances, among  others,  that  articles  were  found  on  or  near  the 
body  which  resembled  articles  shown  to  have  been  the  property,  and  in 
the  possession  of  Bernard  before  his  disappearance.  One  witness 
testified  that  he  made  for  Bernard  a  boot  taken  from  the  foot  of  the 
1  Rex  v.  Clewes,  4  Carr.  &  P.  221. 


160  THE  LAW  OF  IDENTIFICATION. 

dead  body.  A  satchel  was  found  near  the  body,  in  which  was  an 
almanac  on  which  the  name  of  "  Bernard  "  was  written.  A  witness 
identified  it  as  Bernard's  ;  testified  that  he  had  seen  him  write,  and 
thought  the  name  was  in  his  handwriting.  Keys  found  on  the  body 
fitted  the  lock  of  the  satchel.  Various  articles  of  clothing  found  on 
the  body  were  also  identified  as  belonging  to  Bernard.  The  body 
was  decomposed  and  in  a  state  beyond  recognition.  This  is  merely 
the  evidence  produced  to  identify  the  deceased.  In  delivering  the 
opinion  of  the  court,  FINCH,  J.,  comments  thus  :  "  The  question  is 
a  very  grave  one  ;  not  merely  to  the  prisoner,  whose  liberty  may  de 
pend  upon  the  issue,  but  to  the  people,  and  the  administration  of 
public  justice,  for  if  the  law  be  as  the  General  Term  has  declared 
it,  a  murderer  may  always  escape,  if  only  he  shall  so  mutilate  the 
body  of  his  victim  as  to  make  identification  by  direct  evidence  im- 
possible ;  or  shall  so  effectually  conceal  it  that  discovery  is  delayed 
until  decomposition  has  taken  away  the  possibility  of  personal  rec- 
ognition ;  and  it  will  follow  that  the  tenderness  of  the  Penal  Code 
has  opened  a  door  of  escape  to  that  brutal  courage  which  can  man- 
gle and  burn  the  lifeless  bod}7,  and  has  put  a  premium  upon,  and 
offered  a  reward  for  that  species  of  atrocity."  The  learned  judge, 
after  quoting  this  Code,  continues :  "  In  the  first  clause  of  this 
provision  the  endeavor  to  state  and  describe  one  fact  has  involved  the 
statement  of  another,  changing  a  simple  into  a  compound  fact,  and 
making  it  possible  to  apply  the  requirement  of  direct  proof  to  the  two 
facts  —  of  death  and  of  identity,  rather  than  to  the  one  fact  —  of  the 
death  alone.  That  some  one  is  dead  is  directly  proved  whenever  a 
dead  body  is  found.  Its  identity,  as  that  of  the  person  alleged  to 
have  been  killed,  is  a  further  fact,  to  be  next  established  in  the  pro- 
cess of  investigation.  If  it  be  the  meaning  of  the  Penal  Code  that 
both  of  these  facts  —  identity  as  well  as  death — are  to  be  proved  by 
direct  evidence,  it  establishes  a  new  rule  which  never  before  prevailed, 
and  of  which  no  previous  trace  can  anywhere  be  found.  It  has 
always  been  the  rule  since  the  time  of  Lord  HALE,  that  the  corpus 
delicti  should  be  proved  by  direct,  or  at  least,  by  certain  and  une- 
quivocal evidence.  But  it  never  was  the  doctrine  of  the  common 
law,  that  when  the  corpus  delicti  had  been  duly  established,  the 
further  proof  of  the  identity  of  the  deceased  person  should  be  of 
the  same  direct  quality  and  character.  And  this  becomes  quite  evi- 
dent from  a  consideration  of  the  history  and  philosophy  of  the  rule."1 
1  People  v.  Palmer,  109  N.  Y.  110. 


MUBDEB  —  IDENTIFICATION.  161 

Murder  — administering  poison. 

§  237.  In  a  trial  for  murder  in  New  York  the  clothes  identified 
as  those  worn  by  the  accused  on  the  evening  before  the  homicide, 
were  held  properly  submitted  to  the  jury  for  their  inspection  and 
identification.1  A  party  was  indicted  in  New  York  for  administer- 
ing poison  with  intent  to  kill,  and  it  was  held  to  be  sustained  by  proof 
that  the  prisoner  procured  the  poison  and  placed  it  where  it  would 
be  taken  by  the  person  intended  to  be  murdered ;  the  poison  being 
identified,  and  proof  of  previous  malice  on  the  part  of  the  prisoner 
toward  the  person  injured,  which  was  admissible.2  A  bold  attempt 
at  poisoning  was  made  in  England  by  one  Mrs.  Dale.  She  was  in- 
dicted for  having  attempted  to  poison  one  William  Lawson,  with 
intent  to  murder  him,  etc.  The  prisoner  and  her  husband 
lodged  at  the  house  of  the  prosecutor.  On  February  20,  1852,  a 
few  days  before  the  alleged  offense,  a  quarrel  arose  between  the 
prosecutor  and  the  prisoner's  husband,  and  the  latter  was  committed 
to  prison  for  want  of  surety  to  keep  the  peace.  The  prosecutor,  on 
the  same  day,  gave  them  a  week's  notice  to  quit.  On  February  25, 
the  prisoner  went  to  the  chemist's  shop  and  asked  for  a  penny's 
worth  of  salts  of  lemon  to  clean  bonnets.  The  shopman  said: 
"  What  you  want  is  salts  of  sorrel ; ''  she  said  "  yes ; "  he  sold  it  to  her 
and  said  it  was  not  a  thing  to  be  played  with,  and  should  be  kept 
out  of  the  children's  way.  The  next  day  the  prosecutor  and  his 
wife  had  some  tea  for  dinner,  and  finding  something  wrong  in  the 
taste,  called  out  to  a  lodger  who  had  previously  used  the  tea-pot.  At 
the  same  time  the  prisoner  came  in  and  threw  the  tea  away  out  of 
the  cups  and  cleaned  them  with  hot  water.  The  prosecutor  said  : 
"  There  must  be  poison  somewhere."  The  prisoner  said,  "  It  may 
be  in  the  sugar ; "  taking  up  the  sugar,  said,  "  its  in  here."  The 
basin  was  taken  to  the  chemist's,  where  it  was  found  to  contain  salts 
of  sorrel.  The  sugar  and  all  weighed  two  ounces.  Evidence  was 
adduced  to  show  the  character  of  the  poison.  It  appeare%d  that  in 
one  instance  an  ounce  had  failed  to  destroy  life ;  in  another,  half  an 
ounce  had  proved  fatal  in  a  debilitated  subject.  It  would  produce 
sickness  and  nausea.  She  said  to  the  policeman,  that  the  prosecutor 
drove  her  to  it,  and  that  she  had  no  friend  in  the  world.  Being  told 
that  she  must  be  taken  to  the  druggist's  to  see  where  she  got  the 
poison,  she  said,  "  I  bought  it  at  Kendrick's,"  and  in  answer  to 
questions,  said,  "  I  put  it  in  the  sugar  basin  while  the  old  woman 

1  People  v.  Gonzalez,  35  N.  Y.  49.  2  La  Beau  v.  People,  34  N.  Y.  322. 

21 


162  THE  LAW  OF  IDENTIFICATION. 

was  sitting  by  the  fire."  WIGHTMAN,  J.,  said,  in  summing  up  the 
case :  "  There  are  two  questions  in  this  case,  involving  others.  The 
first  is,  whether  the  prisoner  did  attempt  to  administer  the  poison ; 
if  she  did,  the  next  is,  whether  she  made  the  attempt  with  the  in- 
tent to  murder.  If  you  are  not  satisfied  on  either  of  these  points, 
you  will  acquit  the  prisoner.  With  respect  to  the  first  point,  did 
she  attempt  to  administer  the  poison?"  (The  learned  judge  then 
went  over,  and  summed  up  the  evidence  in  the  case.)  "  With  refer- 
ence to  the  statements  to  the  police  officer,  his  lordship  observed, 
that,  according  to  the  strict  line  of  duty,  it  was  improper  in  the  con- 
stable to  put  the  question  to  the  prisoner ;  but  his  conduct  did  not 
amount  to  a  cross-questioning  ;  she  told  him  she  put  it  in  the  sugar. 
If  she  put  it  there,  intending  that  it  should  be  taken,  that  is  an  at- 
tempt to  administer  it.  Then  was  it  with  intent  to  murder  ?  The 
means  used  were  not  sufficient,  for  it  required  a  large  quantity  of 
the  ingredient  to  take  away  life,  but  the  prisoner  might  not  have 
known  what  quantity  was  requisite  for  that  purpose.  On  the  other 
hand,  she  may  have  known,  and  knowing,  may  have  intended  sim- 
ply to  annoy  the  prosecutor  in  revenge  for  the  treatment  of  her  hus- 
band." The  jury  acquitted  the  prisoner,  though  the  policeman  did 
testify  against  her.1 

Identity  by  occupation  —  killed  the  barber. 

§  238.  On  the  trial  of  an  indictment  for  murder  it  is  always  in- 
dispensable to  a  conviction  to  prove  the  identity  of  the  person  killed ; 
it  is  equally  as  important  as  it  is  to  prove  the  corpus  delicti?  Iden- 
tity is  a  question  of  fact  for  the  jury,  and  like  other  facts,  it  may  be 
established,  and  often  is,  by  circumstantial  evidence.3  And  it  must 
be  shown  that  the  deceased  was  the  person  named  in  the  indict- 
ment.4 This,  in  an  indictment  for  murder,  is  equally  as  important 
as  to  identify  the  prisoner  himself.  One  Shepherd  was  indicted, 
tried  and  convicted  for  the  murder  of  one  Wesley  Johnson,  and  sen- 
tenced to  the  penitentiary  for  fourteen  years.  The  point  relied  upon 
for  the  reversal  of  the  judgment  was,  that  it  was  not  proved  that 
the  Johnson  killed  by  the  prisoner  was  the  Wesley  Johnson  men- 
tioned in  the  indictment.  That  the  party  killed  must  be  the  person 
named  in  the  indictment  is  a  clear  principle  in  the  criminal  law. 
The  identity  of  the  deceased  must  be  clearly  established.  But  in 

1  Reg.  v.  Dale,  6  Cox  C.  C.  14.  8  Webster's  case,  5  Gush.  (Mass.)  295. 

1  Bish.  Cr.  Pro.  (3d  ed.),  §  1060.  4  Davis  v.  People,  19  111.  74. 


MURDER  —  IDENTIFICATION.  163 

that  case  it  was  held  that  it  had  been  established,  and  the  court  ex- 
pressed it  briefly,  thus:  "  That  identity  was  established  in  this  case 
is  clearly  shown,  as  all  the  witnesses  speak  of  the  Johnson  killed  as 
"  Johnson,  the  barber,"  and  there  was  but  one  such  at  the  place  of 
the  killing,  whose  name  was  charged  in  the  indictment  to  have  been 
Wesley  Johnson.  A  man  can  be  identified  by  his  Christian  name  or 
by  his  occupation,  and  this  victim  was  identified  by  his  occupation. 
The  prisoner's  counsel,  in  instructions  asked  of  the  court  in  his  be- 
half, refers  to  the  person  killed  as  Wesley  Johnson,  in  fact,  there  is 
no  question  as  to  his  identity."1 

Same  —  when  the  evidence  does  not  identify. 

§  239.  A  similar  question  to  that  noticed  in  the  preceding  section 
arose  in  Illinois  in  1857,  in  which  the  identity  of  the  deceased  was 
held  to  be  indispensable  in  all  cases  of  murder.  That  the  name  of 
the  person  killed  must  be  proved  as  laid  in  the  indictment,  and  it  is 
so,  even  in  cases  of  a  mere  assault,  assault  and  battery,  the  name  of 
the  injured  party  must  be  alleged,  and  proved  as  alleged;  and  also  in 
case  of  larceny  of  goods  or  personal  property,  the  name  of  the 
owner  must  not  only  be  alleged,  but  it  must  be  proved.  The  reason 
of  this  rule  must  be  apparent  to  every  reader.  One  Davis  was  in- 
dicted in  Illinois  for  the  murder  of  "  Seth  Taylor,"  and  upon  the 
question  of  identity  it  was  said  :  "  This  judgment  must  be  reversed, 
because  the  evidence  does  not  show  that  the  person  struck  and  killed 
was  Seth  Taylor,  as  alleged  in  the  indictment.  In  no  part  of  the 
evidence,  which  is  spread  upon  the  records,  is  he  thus  indicated.  He 
is  referred  to  by  all  the  witnesses  as  "  Taylor  "  —  whether  the  Seth 
Taylor  named  in  the  indictment,  or  not,  the  court  may  presume,  but 
cannot  say  with  certainty.  It  is  not  so  proved.  It  is  essential  in  all 
criminal  prosecution,  that  the  name  of  the  party  injured,  or,  as  in 
this  case,  killed,  should  be  proved  as  laid.  There  is  no  conflict  of 
authority  on  this  point.2 

Murder  —  blood-stains  on  a  shirt  —  identity. 

§  240.  One  Houser  was  tried  and  convicted  for  the  murder  of  one 
Farris  in  Missouri.  He  was  convicted  upon  circumstantial  evidence 
of  identity.  It  was  sought  to  show  the  presence  of  the  defendant 
at  the  time  and  place  of  the  alleged  murder,  showing  the  identity  of 
a  shirt  with  blood-stains  on  it,  which  was  found  at  the  place  of  the 
alleged  homicide  and  on  the  next  morning  after  the  killing,  identi- 

1  Shepherd  v.  People,  72  111.  480.  8  Davis  v.  People,  19  HI.  74. 


164  THE  LAW  OF  IDENTIFICATION. 

fied  with  the  shirt  worn  by  the  accused  on  the  previous  day ;  the 
fact  testified  to  by  the  person,  a  relation  of  the  accused,  at  whose 
house  the  homicide  was  committed,  that  she  gave  the  shirt  up  to  the 
brother  of  the  accused,  on  his  demand,  was  held  to  be  evidence  tend- 
ing to  show  the  real  opinion  of  the  witness  as  to  the  question  of 
identity  and  ownership  of  the  shirt  —  she  having  stated  that  when 
she  gave  the  shirt  to  the  brother  she  told  him  that  she  did  not  be- 
lieve it  belonged  to  the  accused.  Upon  this  circumstance  the 
court  announced  the  rule  thus  :  "  This  witness  was  competent  to 
identify  the  shirt,  and  it  became  material  to  ascertain  what  her 
opinion  was  on  that  subject.  She  said  her  opinion  was  that  the  shirt 
did  not  belong  to  the  defendant,  although  in  her  opinion  it  resem- 
bled the  defendant's  shirt  more  than  those  of  her  brother,  and  al- 
though one  of  the  sleeves  was  torn  and  in  that  respect  corresponded 
with  the  defendant's,  whose  shirtsleeve  had,  according  to  other  testi- 
mony, been  torn  in  a  scuffle  at  Laster's  on  the  day  of  the  homicide. 
Although  the  witness  expressed  the  opinion  that  the  shirt  was  not 
the  defendant's,  the  fact  that  she  testified  to  was  that  she  gave  the 
shirt  to  the  defendant's  brother,  who  applied  to  her  for  it  as  the  de- 
fendant's shirt.  The  testimony  is  admitted  to  be  competent  to  ac- 
count for  the  non-production  of  the  shirt  by  the  State.  We  think  it 
was  always  competent  to  show  the  real  opinion  of  the  witness  on  the 
question  of  identity.  That  belief  it  was  the  province  of  the  jury  to 
ascertain,  not  only  from  the  w  tness'  words  but  from  her  acts."1 

Slave  indicted  —  identity  of  pass. 

§  241.  The  prisoner,  a  slave,  was  convicted  for  murder  in  North 
Carolina  in  1829.  Upon  the  trial  it  was  proved  that  the  body  of 
the  deceased  was  found  on  the  morning  of  November  27,  1828,  on 
the  side  of  the  road.  There  were  appearances  of  a  fierce  conflict 
between  two  men  for  a  distance  of  thirty-five  yards.  The  mere  cir- 
cumstance it  seems  of  a  lost  paper  convicted  him,  for  about  twelve 
paces  (yards)  from  where  the  body  lay,  the  following  paper  was 
found  :  "  Permit  Arthur  to  pass  and  repass  till  Monday  morning 
next,  November  23,  1828.  HENRY  SHEPHERD."  Arthur  was  the 
accused.  Shepherd  testified  that  he  signed  the  paper  by  direction 
of  the  prisoner's  master,  and  delivered  it  to  a  son  of  the  prisoner 
to  carry  to  his  father.  This  paper  was  admitted  in  evidence  over 
the  prisoner's  objection.  But  the  court  stated  to  the  jury,  at  the 
1  State  v.  Houser,  28  Mo.  233. 


MURDER  —  IDENTIFICATION.  165 

time  the  paper  was  read,  that  if  they  should  believe  that  the  pris- 
oner actually  received  that  permit  when  it  was  written,  they  would 
give  to  that  circumstance  such  weight  as  they  thought  proper  ;  but 
if  they  should  think  that  the  prisoner  never  received  it,  then  they 
should  exclude  from  their  consideration  all  the  evidence  relative  to 
it.  Upon  this  single  circumstance,  in  proof  of  identity,  he  was  con- 
victed, and  that  conviction  affirmed.  And  so  little  consideration 
was  given  to  this  important  branch  of  the  case,  that  the  court  merely 
gave  it  this  passing  remark  :  "  The  permit,  I  think,  was  properly 
received  in  evidence,  and  the  law  properly  laid  down  by  the  judge."1 

Murder  —  by  one  of  two  or  more  persons. 

§  242.  When  a  crime  is  proved  against  two  or  more  persons  and 
it  is  not  certain  which  is  the  guilty  party,  or  against  one  by  testimony 
sufficiently  contradictory  or  otherwise  shown  to  be  mistaken  or  in- 
credible, the  prosecution  must  fail,  and  the  same  rule  will  apply, 
which  applies  to  the  persons  or  things,  the  subject  of  the  offense 
One  Campbell  was  indicted  in  Illinois  for  murder,  and  it  was  there 
held,  as  above  stated,  that  although  it  might  be  positively  proved 
that  one  of  two  or  more  persons  committed  a  crime,  yet  if  it  be  un- 
certain which  it  was,  all  must  be  acquitted.  This  is  doubtless  true 
as  a  general  rule,  but  it  certainly  finds  its  exception  in  cases  where  a 
conspiracy  has  been  shown.2  In  the  trials  of  an  indictment  in 
Georgia  it  was  held  that  where  several  persons  were  indicted  for  an 
assault  with  intent  to  murder,  where  it  appeared  that  there  was  a 
considerable  crowd  present  besides  the  defendants,  at  the  time  the 
offense  was  committed,  evidence  from  a  witness  to  the  effect  that 
he  heard  some  one  cry,  "  kill  him,"  "  kill  him,"  was  inadmis- 
sible, and  the  judgment  of  the  court  below  was  reversed.  But  it 
will  be  seen  that  the  general  rule  of  evidence,  in  many  respects,  finds, 
exceptions  when  it  is  sought  to  prove  identity.3 

Of  accused  —  murder  —  larceny. 

§  243.  On  a  trial  for  murder  in  New  York,  the  prosecution  sought 
to  establish  that  one  Cortright  was  seen  at  a  certain  time  and  place 
by  one  of  the  witnesses.  The  witness  said  that  he  passed  a  man  at 
a  certain  time  and  place ;  and  against  the  prisoner's  objection,  was 
allowed  to  state  that  he  "  had  an  impression  who  it  was ;  and  don't 
know  for  certain,  only  I  thought  it  was,  I  thought  it  was  William 

1  State  v.  Arthur,  2  Dev.  (N.  C.)  217.          3  Harris  v.  State,  53  Ga.  640. 

2  Campbell  v.  People,  16  111.  17. 


166  THE  LAW  OF  IDENTIFICATION. 

Cortright,  I  don't  know  whether  it  was  him  or  not,  it  was  my  im- 
pression it  was."  It  was  held  that  the  court  erred  in  receiving  the 
evidence.1 

A  party  in  Kentucky  was  indicted  for  stealing  certain  municipal 
bonds  of  the  city  of  Cincinnati,  and  convicted.  Upon  the  question 
of  the  identity  of  the  accused,  it  was  held  that  the  court  erred  in  re- 
jecting the  testimony  of  a  witness  who  knew  the  accused  at  the  time 
the  bonds,  with  the  larceny  of  which  he  was  charged,  were  alleged 
to  have  been  purchased  from  him  in  the  city  of  Cincinnati ;  that  he 
saw  there  a  person  so  much  resembling  the  accused,  that  he  twice- 
approached  the  person  with  the  intention  of  speaking  to  him,  believ- 
ing him  to  be  the  accused.2 

Same  —  robbery  —  evidence. 

§  244.  A  case  decided  in  Virginia  in  1850,  was  a  joint  indictment 
for  robbery  of  gold  and  silver  coin  from  the  residence  of  the  pros- 
ecutor. Hopper,  Stiers  and  Lemons  were  indicted  ;  the  two  former 
were  on  trial.  The  prosecution  introduced  Peter  Watkins  as  a  wit- 
ness, who  appeared  reluctant,  and  on  examination  in  chief  the  coun- 
sel put  the  questions  to  him  as  follows :  "  State  whether  or  not  you 
examined  the  horse-tracks  toward  Crogan's  ?  state  whether  or  not 
you  had  any  difficulty  in  following  the  tracks  ?  "  Prisoners'  counsel 
objected,  but  the  court  overruled  the  objection,  and  allowed  him  to 
answer,  and  the  answer  was  adverse  to  the  prisoners  and  they  ex- 
cepted,  and  he  identified  the  two  prisoners  in  court  as  Hopper  and 
Stiers,  having  seen  them  on  two  previous  occasions  only ;  that  he 
believed  them  to  be,  to  the  best  of  his  knowledge,  two  of  the  persons 
engaged  in  the  robbery,  and  the  court  admitted  the  evidence.  They 
were  convicted,  and  upon  writ  of  error,  the  court  refused  them  a 
new  trial.3 

Of  child  murdered  —  rule  in  England. 

§  245.  A  woman  was  indicted  in  England  for  the  murder  of  her 
child  about  sixteen  months  of  age.  It  was  held  that,  although  it  was 
necessary  in  a  case  of  murder  that  there  should  be  evidence  that  the 
body  found  was  the  body  of  the  murdered  person,  the  circumstances 
may  be  sufficient  evidence  of  identity.  Admissions  by  the  prisoner, 
elicited  by  questions  of  a  police  officer,  with  an  admonition  to  tell  all 
she  knew,  etc.,  were  held  to  be  inadmissible.  But  a  subsequent  state- 

1  People  v.  Williams,  29  Hun,  520.  8  Hopper  v.  Com.,  6  Gratt.  684. 

9  White  v.  Com.,  80  Ky.  480. 


MUKDEK  —  IDENTIFICATION.  167 

ment  by  the  prisoner  to  another  police  officer  is  not  necessarily  so  far 
under  the  same  influence  as  to  exclude  it.  One  Baxter,  a  policeman, 
had  said  to  the  prisoner,  "  you  had  better  tell  all  you  know  about  it, 
it  will  save  trouble ; "  she  then  made  statements,  which  it  was  pro- 
posed to  prove  on  the  part  of  the  prosecution ;  it  was  held  inad- 
missible.1 In  order  to  establish  identity,  evidence  that  the  wit- 
ness gave  testimony  in  a  prosecution  against  the  prisoner  for  another 
murder,  and  that  he  recognized  him  as  the  person  from  whom  he 
purchased  coin  the  morning  after  the  murder,  was  properly  admitted 
without  producing  the  record  of  the  prosecution.2  In  an  action  to 
recover  damages  of  a  railroad  company  for  personal  injuries  resulting 
from  negligence,  it  was  held  proper  to  permit  an  exhibition  of  the 
wounded  limb  to  the  surgeon  in  the  presence  of  the  jury  and  in  that 
case  the  plaintiff  recovered  a  judgment  for  $900,  which,  on  appeal, 
was  affirmed.3  Beavers  was  convicted  for  the  murder  of  Sewell  and 
appealed.  On  the  subject  of  the  proofs  the  court  said :  "  The  court 
allowed  a  certain  photograph,  and  evidence  touching  it,  to  go  to  the 
jury,  for  the  purpose  of  identifying  the  deceased ;  evidence  touching 
the  spot  on  the  coat  of  the  prisoner,  supposed  to  be  a  blood  spot,  and 
the  test  of  physicians  in  reference  to  the  same  spot ;  evidence  as  to 
Ithe  dodging  and  trembling  and  confusion  of  the  prisoner,  when  met 
by  the  witness,  before  and  at  the  time  of  the  arrest ;  evidence  of  a 
witness  as  to  his  having  seen  a  man  in  Ripley  county  some  time  be- 
fore the  commission  of  the  homicide,  who  resembled  the  prisoner ; 
evidence  touching  a  satchel  and  its  contents,  found  near  the  church 
where  the  dead  body  was  found,  as  belonging  to  the  deceased.  The 
admission  of  all  of  which  the  prisoner's  counsel  thinks  was  erroneous. 
But  with  careful  attention,  we  can  see  no  error  in  these  rulings."4 

Identity  —  murder  —  head  of  murdered  man. 

§  246.  In  the  trial  of  an  indictment  for  murder,  where  the  death 
of  the  person  alleged  to  have  been  killed  has  been  prima  facie  estab- 
lished by  the  identification  of  the  dead  body  as  that  of  such  person, 
the  onus  is  then  on  the  prisoner  to  show,  if  he  can,  that  such  person 
is  still  living ;  this  is  an  alibi  of  the  alleged  deceased  person,  to  es- 
tablish which,  the  same  weight  of  evidence  is  required  as  would  be 
to  establish  an  alibi  of  the  prisoner.  One  Vincent  was  indicted  in 
Iowa  for  the  murder  of  Clarence  Showers,  and  convicted  of  man- 
slaughter. The  evidence  was  circumstantial  and  extremely  compli- 

1  Reg.  v.  Cheverton,  2  Fost.  &  F.  833.        8  Mulhado  v.  R.  Co.,  30  N.  Y.  370. 

2  Brown  v.  Com.,  76  Pa.  St.  319.  4  Beavers  v.  State,  58  Ind.  530,  535. 


168  THE  LAW  OF  IDENTIFICATION. 

cated.  The  court,  speaking  of  this,  said  :  "  We  can  scarcely  refer  to 
a  case  that  has  fallen  within  our  knowledge,  which  presents  such 
numerous,  varied  and  complicated,  and  at  the  same  time,  concordant 
circumstances,  upon  which  became  necessary  to  determine  the 
guilt  or  innocence  of  an  accused,  as  the  record  before  us  discloses. 
The  identity  of  the  prisoner  and  the  deceased  ;  their  presence  together 
in  the  neighborhood  where  the  dead  body  was  found,  at  the  time  the 
crime  was  committed ;  dates  of  facts  and  circumstances  necessarily 
developed,  indicating  the  guilt  or  innocence  of  the  prisoner  ;  all  of 
them  were  mainly  and  most  of  them  wholly  established  by  circum- 
stantial evidence.  The  defense  is  based  on  an  alleged  alibi  of  the 
prisoner,  and  also  that  the  body  of  the  murdered  man  was  not  in 
fact  that  of  Clarence  Showers,  who,  it  is  claimed  by  the  prisoner,  was 
in  life  long  after  the  date  of  the  crime."  The  best  identification  of 
the  deceased  was  his  head,  which  had  been  separated  from  the  body, 
and  was  partially  decayed.  The  court,  reasoning  upon  the  testi- 
mony of  identification,  said  :  "  It  may  be  probable  that  the  evidence 
of  these  witnesses  on  the  question  of  identity,  they  having  known 
deceased  in  life,  or  having  before  them  a  picture,  admitted  to  be 
correct,  or  in  any  other  way  made  familiar  with  the  features  of  the 
deceased,  would  be  of  greater  weight  than  that  of  those  who  have 
not  made  the  human  body  a  study.1  The  judgment  of  the  court  be- 
low was  affirmed. 

Webster's  trial  —  identity  of  the  deceased. 

§  247.  The  celebrated  Webster  case,  decided  in  Massachusetts  in  1849, 
involved  several  questions  of  identity,  which  seem  to  deserve  a  brief 
notice  at  this  point.  Professor  John  W.  Webster  was  indicted  for 
the  murder  of  Dr.  George  Parkman  of  Boston,  on  November  23, 
1849.  The  evidence  was  almost  wholly  circumstantial.  Webster 
was  a  professor  of  chemistry  in  the  Medical  College  in  Boston.  The 
indictment  contained  four  counts,  the  last  of  which  was  relied  upon, 
and  may  be  here  given  as  follows  :  "  That  the  said  John  W.  Web- 
ster, at  Boston  aforesaid,  in  the  county  aforesaid,  in  a  certain  build- 
ing known  aa  the  Medical  College  there  situate,  on  the  twenty-third 
day  of  November  last  past,  in  and  upon  the  said  George  Parkman, 
feloniously,  willfully  and  of  his  malice  aforethought,  did  make  an  as- 
sault, and  him  the  said  George  Parkman,  in  some  way  and  manner, 
and  by  some  means,  instruments,  and  weapons  to  the  jurors  unknown, 
1  State  v.  Vincent,  24  Iowa,  570. 


i 

MUKDEK  —  IDENTIFICATION.  169 

did  then  and  there  feloniously,  willfully  and  of  his  malice  afore- 
thought, deprive  of  life.  So  that  he,  the  said  George  Parkman,  then 
and  there  died ;  and  so  the  jurors  aforesaid,  upon  their  oaths  afore- 
said, do  say,  that  the  said  John  "Webster,  him  the  said  George  Park- 
man, in  the  manner  and  by  the  means  aforesaid,  to  them  the  said 
jurors  unknown,  then  and  there,  feloniously,  willfully  and  of  his 
malice  aforethought,  did  kill  and  murder,"  etc.,  etc.  It  was  shown 
substantially,  that  Parkman  was  peculiar  in  manners,  and  well  known 
in  Boston;  left  his  home  on  November  23,  1849,  in  good  health 
and  spirits,  and  never  returned  ;  he  was  traced  to  different  points  in 
several  streets,  until  about  two  o'clock,  p.  M.,  when  he  was  seen  to 
enter  the  Medical  College,  but  did  not  return  home.  Search  was 
made  on  the  next  day  and  continued  until  the  30th,  when  certain 
parts  of  the  human  body  were  discovered  in  and  about  defendant's 
labratory  in  the  Medical  College ;  and  many  fragments  of  bones  and 
blocks  of  mineral  teeth,  embedded  in  slag  cinder,  together  with  small 
quantities  of  gold,  which  had  been  melted,  were  found  in  the  assay 
furnace  of  the  labratory.  These  led  to  the  arrest  of  "Webster.  The 
part  of  the  human  body  so  found  resembled  in  every  respect  the  cor- 
responding proportions  of  the  body  of  Dr.  Parkman,  and  there  were 
no  duplicate  parts,  and  not  the  remains  of  a  dissected  body.  The 
artificial  teeth  found  were  made  for  Parkman  by  a  dentist  in  Boston 
in  1846,  and  by  him  refitted  about  two  weeks  before  his  disappear- 
ance. Defendant  was  indebted  to  Parkman  on  certain  notes,  and 
was  being  pressed  for  payment.  Defendant  had  said  that  on  No- 
vember 23,  about  nine  o'clock,  A.  M.,  he  left  word  at  Dr.  Parkman's 
house  for  him  to  call  at  the  college  at  half-past  one  o'clock  and  he 
would  pay  him  ;  and  that  he  had  an  interview  with  him  about  that 
hour  at  the  college.  That  defendant  had  no  means  to  make  the 
payment ;  but  the  notes  were  afterward  found  in  his  possession. 
Gould,  a  witness  for  the  prosecution,  testified  that  he  knew  the  pris- 
oner by  sight,  but  had  no  personal  acquaintance  with  him,  never 
saw  him  write,  but  had  seen  his  handwriting  and  was  familiar  with 
his  signature  ;  had  seen  his  signature  to  diplomas  which  witness  had 
filled  out.  Witness  had  paid  particular  attention  to  penmanship  for 
fifty  years,  and  had  given  instructions  in  it ;  "  I  have  published  on 
the  subject."  Three  anonymous  letters  were  produced,  addressed  to 
the  city  marshal  of  Boston,  which  had  been  dropped  in  the  post- 
office  at  Boston  and  East  Cambridge,  between  the  time  of  the  disap- 
pearance and  the  arrest,  in  which  various  suggestions  were  thrown 
22 


170  THE  LAW  OF  IDENTIFICATION. 

out,  calculated  to  divert  attention  from  the  college,  and  it  was  pro- 
posed to  ask  the  witness  in  whose  handwriting  they  were  ;  objection 
was  made,  but  overruled,  and  witness  said  he  thought  they  were 
in  the  handwriting  of  defendant.  There  was  much  evidence  on  the 
part  of  the  defendant  to  prove  good  character,  etc.  Several  witnesses 
testified  that  they  saw  Dr.  Parkman  at  various  places  in  Boston  in 
the  afternoon  of  November  23,  between  two  and  five  o'clock.  The 
prosecution  then  proposed  to  show  that  there  was  at  the  time  in 
Boston  a  man  bearing  a  strong  resemblance  to  Dr.  Parkman,  in  his 
form,  gait  and  manner — so  strong  that  he  was  approached  and  spoken 
to  as  Dr.  Parkman,  by  persons  well  acquainted  with  the  latter.  But 
the  court  rejected  this  as  too  remote,  and  remarked  that  "  perhaps 
there  might  be  no  objection  to  the  introduction  of  the  very  person 
supposed  to  be  Dr.  Parkman."  These  were  the  main  points  in  this 
very  remarkable  case,  involving  the  question  of  identity.1  The  case 
in  full  has  been  given  to  the  public  in  pamphlet  form. 

Homicide  —  identity  of  the  deceased. 

§  248.  Where  the  witnesses  in  a  murder  case  saw  the  deceased 
on  the  day  of  the  alleged  murder  they  may  testify  to  the  identity 
of  the  dead  body,  as  that  of  a  person  who  was  seen  by  them  on  the 
same  day,  and  who  stated  that  a  horse  of  a  certain  description 
had  escaped  from  him,  and,  on  being  informed  that  the  defend- 
ant was  in  possession  of  a  horse  answering  to  that  description^ 
said  that  the  defendant  was  the  person  he  desired  to  see,  and  thereupon 
went  in  search  of  the  defendant.  The  deceased  was  found  next  day, 
shot  in  three  places  and  his  throat  cut,  and  defendant  had  left,  on 
the  horse,  which  he  claimed  to  have  won.  The  jury  found  him 
guilty  of  murder  in  the  first  degree  and  assessed  the  death  penalty, 
but  this  was  reversed.2* 

1  Com.   v.  Webster,  5  Cush.  (Mass.)        2  Hamby  v.  State,  36  Tex.  523. 
295.     And  see  Bemis'  Rep.  80,  84,  85,  87. 

*  In  Hamby  v.  State,  supra,  holding  as  above  stated,  the  court  briefly  said:  "  The  indictment 
in  this  case  is  certainly  inartiflcially  drawn,  wherein  it  attempts  to  describe  the  wound  of  which 
the  deceased  died;  but  it  in  effect  charges  the  defendant  with  having  shot  the  deceased  in  the 
head,  breast  and  side,  giving  him  one  mortal  wound,  of  which  mortal  wound  he  then  and  there 
instantly  died.  Though  this  expression  is  a  peculiar  one,  and  might  be  held  subject  to  criticism 
yet  it  is  believed  that  if  either  of  the  wounds  described  were  proven  mortal,  the  indictment 
would  thereby  be  sustained;  and  it  was  not,  therefore,  bad  on  exception  or  demurrer.  The  force 
of  the  objection  made  to  the  testimony  of  Jackson  and  Mrs.  Methlin  is  not  perceived.  The  de- 
ceased appears  to  have  been  a  total  stranger  in  the  community,  and  we  think  the  testimony  of 
those  two  witnesses  was  properly  admitted,  to  identify  the  person  with  whom  they  conversed, 
with  the  deceased.  Their  testimony  was  also  admissible  to  show  that  there  was  some  business 
or  other  relation  between  the  defendant  and  the  deceased .  And  the  testimony  of  Mrs.  Methlin 
was  also  material,  as  showing  that  the  deceased,  just  before  his  death,  was  in  search  of  the  de- 


MTIUDEB  —  IDENTIFICATION.  171 

Decomposition  of  bodies  —  preservation. 

§  249.  One  of  the  circumstances  sometimes  relied  upon  to  identify 
the  body  of  a  deceased  person  as  one  alleged  to  have  been  murdered, 
is  the  length  of  time  which  has  elapsed,  as  corresponding  with  the 
time  the  person  has  been  missing.  But  this  is  supposed  not  to  be 
reliable.  Of  course,  from  decomposition  it  may  be  known  whether  or 
not  the  death  has  been  very  recent.  The  rapidity  of  the  process  of 
decomposition  depends  upon  so  many  different  circumstances  that  it 
is  uncertain.  At  a  late  period  of  decomposition,  the  examination  of  the 
body  may  not  serve  as  a  test  to  be  relied  upon  with  any  great  degree- 
of  certainty.  The  age  of  the  person,  existence  of  wounds,  last  illness, 
constitution  of  the  person,  exposure  to  air  or  water  before  interrnen  t 
or  before  discovery,  the  temperature  of  the  weather,  as  hot  or  cold, 
the  latitude,  the  purity  or  impurity  of  atmosphere,  and  many  other 
conditions  are  to  be  considered.  Wharton  and  Stille  in  their  Medical 
Jurisprudence,  vol.  3,  §  686,  say  :  "  The  air  at  its  ordinary  temperature 
favors  the  progress  of  putrefaction.  In  bodies  which  are  exposed  for 
a  long  time  to  all  the  changes  of  weather,  it  is  estimated  that  all  the 
soft  parts  are  completely  destroyed  in  less  than  six  years,  and  most  of 
the  bones  in  twelve,  as  they  become  light,  brittle  and  honeycombed  in 
their  appearance.  (§  687)  Water,  being  a,  natural  constituent  of  the 
human  body,  is  also  one  of  the  elements  necessary  for  the  progress  of 

fendant.  This  testimony  is  not  objectionable  on  the  ground  of  being  hearsay  evidence,  and  the 
court  did  not,  therefore,  err  in  admitting  it  to  the  jury.  But  we  think  the  court  did  err  in  over- 
ruling defendant's  motion  for  a  new  trial.  The  conviction  was  had  almost  wholly  on  circumstan- 
tial evidence,  and  that  failed  to  establish  any  evidence  of  express  malice,  and  yet  the  jury 
found  the  defendant  guilty  of  murder  in  the  first  degree,  and  assessed  the  death  penalty.  The 
main  circumstances  proven  on  the  trial,  upon  which  this  verdict  was  found,  are  substantially  as 
follows:  On  the  day  the  homicide  is  supposed  to  have  been  committed,  the  deceased  and  de- 
fendant were  at  Jackson's  store,  in  Sherman,  apparently  quite  friendly.  They  left  the  store  and 
rode  together.  Not  long  after,  defendant  went  to  Methlin's  house  and  penned  a  horse  there, 
which  answered  the  description  of  the  one  the  deceased  rode  from  Sherman,  and  said  he  had 
bought  it.  He  got  the  horse  and  left  for  Ward's,  his  brother-in-law.  He  looked  as  though  he 
had  been  drinking.-  Soon  after  defendant  left  Methlin's,  deceased  came,  and  appeared  to  have 
been  drunk.  He  said  he  wanted  to  see  defendant,  who  had  his  horse.  The  deceased  left  Meth- 
lin's  for  Ward's,  a  little  before  sundown,  and  was  last  seen  by  Methlin  near  Ward's  field.  When 
defendant  left  Methlin's  he  went  to  Ward's;  got  there  about  two  o'clock,  was  drunk  and  said  he 
had  killed  a  man  in  Sherman  that  day;  was  at  the  house  two  or  three  times  during  the  after- 
noon. He  had  the  horse  described  as  the  one  belonging  to  the  deceased,  and  also  a  gold  watch 
supposed  to  be  the  deceased's,  which  he  said  he  had  won.  About  sundown  he  got  upon  the  horse 
he  claimed  to  have  won,  and  rode  off.  He  was  soon  after  seen  riding  south  on  a  gallop,  in  the 
direction  in  which  the  body  of  deceased  was  found,  and  deceased  running  after  him,  hallooing 
to  defendant  to  stop.  In  about  an  hour,  defendant  returned  to  Ward's  house;  he  acted  very 
strange  and  restless.  At  one  o'clock  in  the  morning  he  left  on  horse-back.  He  told  Ward  that 
a  man  would  be  found  dead  near  there.  On  the  next  day  the  body  of  deceased  was  found;  he 
had  been  shot  in  the  back,  head  and  side,  and  his  throat  cut.  These  are  the  material  facts  proven 
to  connect  defendant  with  deceased,  and  with  this  terrible  tragedy . "  This  was  held  insufficient 
to  warrant  a  verdict  of  murder  hi  the  first  degree.  The  court  thought  it  failed  to  establish  ex- 
press malice.  .^  • 


172  THE  LAW  OF  IDENTIFICATION. 

decomposition.  If,  however,  the  body  is  sunk  in  water,  putrefaction 
does  not  advance  so  rapidly  as  in  the  air,  and  often  the  changes 
which  take  place  are  different  from  those  of  ordinary  decomposition. 
The  soft  parts  of  the  body  may  become  converted  into  a  substance 
called  chevreul,  adipocere.  It  is  solid,  white,  and  fusible,''  etc. 
Having  neither  space,  time,  or  inclination  to  pursue  this  subject  in 
detail,  as  we  find  it  laid  down  in  the  valuable  works  on  medical  juris- 
prudence, we  may  refer  to  the  Egyptian  mummies.  It  is  said  that 
Dr.  Walter  Lewis,  who  was  engaged  for  many  months  in  the  years 
1849  and  1850,  in  inspecting  the  vaults  of  the  churches  of  London, 
for  the  board  of  health,  states,  among  many  other  interesting  facts, 
which  are  not  here  in  place,  the  following,  relative  to  the  time  for 
decomposition  in  vaults :  "  The  complete  decomposition  of  a  corpse, 
and  its  resolution  into  its  ultimate  elements,  is  by  no  means  accom- 
plished in  a  period  of  ten  years ;  nor  is  that  description  accurate  which 
represents  that  at  the  end  of  that  period  nothing  but  a  few  brittle 
bones  are  left  in  the  else  vacant  shroud ;  on  the  contrary,  so  extremely 
slow  is  the  process,  under  the  circumstances,  that  I  have  but  rarely 
seen  the  remains  in  a  leaden  cofiin,  of  any  age,  in  the  condition  de- 
scribed. In  a  few  wooden  coffins,  the  remains  are  found  exactly  in 
this  state  in  a  period  of  from  two  to  five  years.  This  period  depends 
upon  the  quality  of  the  wood,  and  the  free  access  of  the  air  to  the 
coffin.  But  in  leaden  coffins,  fifty,  sixty,  eighty  and  even  a  hundred 
years  are  required  to  accomplish  this.  I  have  opened  a  coffin  in 
which  the  corpse  had  been  placed  for  nearly  a  century,  and  the  am- 
moniacal  gas  formed  dense  white  fumes  when  brought  into  contact 
with  hydrochloric  acid  gas,  and  was  so  powerful,  that  the  head  could 
not  remain  near  it  for  more  than  a  few  seconds  at  a  time.  The 
putrefaction  is,  therefore,  very  much  retarded  by  the  corpse  being 
placed  in  a  leaden  coffin.''1* 

1  Wharton  &  Stille  Med.  Jur.,  vol.  3,  §  691. 

*The  same  authors  at  §  685,  note,  say:  "There  Is  upon  the  summit  of  the  Great  St.  Bernard, 
a  sort  of  morgue  (dead-house).  In  which  have  been  deposited,  from  time  immemorial,  the  bodies 
of  these  unfortunate  persons  who  have  perished  upon  this  mountain  by  cold,  or  the  fall  of  ava- 
lanches. The  study  of  the  circumstances  of  locality  and  of  temperature  in  which  this  establish- 
ment i.s  placed  may,  to  a  certain  degree.  Indicate  the  most  favorable  condition  for  the  long  pre- 
servation of  bodies.  Thus  are  shown  to  travelers  bodies  which  they  assert  have  been  sufficiently 
preserved  to  be  recognizable  after  the  lapse  of  two  or  three  years.  A  physician,  whose  position 
as  former  Prosecutor  of  the  Faculty  of  Medicine  in  Paris  rendered  him  curious  to  visit  this  part 
of  the  hospital  In  all  its  details,  verified,  with  his  own  eyes,  all  that  travelers  have  written,  and 
has  transmitted  to  us  the  following  observations:  "  The  hospital  at  St.  Bernard  is,  as  is  well  known, 
the  most  elevated  habitation  of  Europe,  being  seven  thousand  two  hundred  feet  above  the  level 
of  the  sea.  The  temperature  of  this  part  of  the  globe  Is  always  very  low,  rarely  above  zero,  even 
during  summer.  This  extensive  establishment  is  built  upon  the  borders  of  a  lake,  at  the  bottom 


MUKDER  —  IDENTIFICATION.  173 

Murder  —  alibi  —  opinion  —  circumstances  —  teeth. 

§  250.  It  is  generally  held  in  trials  for  murder,  where  the  death 
of  the  person  is  established  prima  facie  by  the  identity  of  a  dead 
body  as  that  of  the  person  alleged  to  have  been  murdered,  that  the 
bnrden  is  then  changed,  and  it  devolves  upon  the  accused  to  show 
that  such  person  is  still  living.  This  defense  is  an  alibi  of  the  alleged 
deceased  person,  and  requires  the  same  weight  of  evidence  that  is  nec- 
essary to  establish  the  alibi  of  the  accused. l  But  it  seems  to  have  been 
held  at  one  time  in  New  York,  that  a  witness  could  not  be  allowed 
to  express  his  opinion  that  the  dead  body  was  that  of  the  murdered 
man  or  person.2  But  the  rule  of  evidence  now  seems  to  be,  that 
opinion  evidence  is  always  received  on  questions  of  identity.  It 
will  be  often  very  difficult,  if  not  impossible,  to  prove  identity  with- 
out admitting  the  witness'  opinion  as  to  identity.  Linsday  was  in- 
dicted for  the  murder  of  one  Colvin,  in  New  York,  and  his  case 
finally  decided  by  the  Court  of  Appeals  in  1875,  in  which  identity 
became  an  important  question.  A  dead  body  was  found  in  Seneca 
river,  June  22,  1874 ;  the  skull  was  fractured;  Dr.  Kimball,  who  saw 
the  body  soon  after  it  was  discovered,  testified  as  to  whether  the 
bone  was  freshly  fractured,  or  whether  the  fracture  was  old.  He 
testified  that  it  was  not  recent,  and  gave  his  opinion  from  the  ap- 
pearance of  the  edges  of  the  fractured  bone  and  its  color.  Colvin 

1  State  v.  Vincent,  34  Iowa,  570.  2  People  v.  Wilson,  3  Park.  Cr.  199.    . 

of  a  gorge  in  the  mountain;  the  principal  mass  of  the  building  represents  a  long  parallelogram, 
placed  in  the  direction  of  the  gorge,  so  that  its  two  principal  faces,  pierced  with  numerous  win- 
dows,  are  sheltered  from  the  wind  by  the  rocks;  whilst  the  two  extremities,  on  thercontrary,  are 
exposed  to  all  the  violence  of  those  which  blow  from  one  side  of  the  gorge  to  the  other.  About  fifty 
steps  beyond  the  principal  building,  and  a  little  out  of  the  right  line  with  it  is  the  morgue,  a 
sort  of  square  chamber,  the  walls  of  which  are  three  or  four  feet  thick,  constructed  of  good 
stone,  and  the  arched  roof,  which  is  very  solid.  Two  windows,  about  four  feet  square,  are  pierced 
in  the  direction  of  the  breadth  of  the  valley,  directly  facing  each  other,  so  that  a  perpetual  cur- 
rent of  cold  air  traverses  the  interior  of  the  chamber.  There  is,  further,  but  a  single  table  in  the 
morgue,  upon  which  they  place  the  bodies  when  first  introduced;  after  a  while  they  are  ar- 
ranged around  the  wall  In  an  upright  attitude.  At  the  time  of  my  passage  of  the  Great  St. 
Bernard  (31st  August,  1837)  there  were  several  of  those  mummified  bodies  along  the  wall  of  the 
chamber,  but  a  great  number  were  entirely  divested  of  flesh,  and  lay  scattered  about  the  earthy 
floor  of  the  room.  They  informed  me  that  decomposition  only  took  place  when  the  bodies  fell 
by  accident  to  the  ground,  which  was  owing  to  the  humidity  occasioned  by  the  snows,  which 
occasionally  entered  with  the  current  of  ah*  through  the  windows  of  the  morgue." 

Dr.  Harlan  says:  "Early  in  September,  1833, 1  had  an  opportunity  of  inspecting  the  contents 
of  the  morgue  of  St.  Bernard.  Among  the  group  of  bodies  of  every  age  and  sex,  we  were 
particularly  struck  with  two  figures,  one,  that  of  a  man,  whose  countenance  was  horribly  contorted 
by  the  act  of  desiccation:  —  each  limb  and  every  muscle  of  the  body  had  assumed  the  expression 
of  a  wretch  in  purgatory.  The  other  was  that  of  a  mother  holding  her  infant  to  her  bosom,  the 
latter  with  an  imploring  expression,  looking  up  to  the  face  of  the  mother,  whom  it  appeared  to 
have  survived  some  time,  as  is  generally  the  case  when  mother  and  child  are  frozen  together  —  a 
great  power  of  forming  animal  heat  exists  hi  children."  (History  of  Embalming,  etc.,  by  J.  N. 
Grannal.  Translated  from  the  French  by  E.  Harlan,  M.  D.,  Philadelphia;  Judah  Dodson,  1840.) 


174  THE  LAW  OF  IDENTIFICATION. 

had  been  missing  about  six  months  when  the  body  was  found.  To 
identify  the  body  found  as  that  of  Colvin,  witnesses  were  allowed  to 
testify,  under  objection  and  exceptions,  as  to  a  similarity  and  color 
of  the  hair  and  beard  of  the  body,  and  of  Colvin  ;  and  as  to  the 
measure  of  the  body  and  the  stature  of  Colvin,  showing  a  corre- 
spondence. A  dentist  who  had  extracted  some  teeth  for  Colvin  and 
who  noticed  some  peculiar  indentation  in  the  others  was  permitted 
to  testify  that  the  teeth  extracted  were  missing  from  the  jaw  of  the 
body  found,  and  that  the  remaining  teeth  had  the  same  peculiarities 
he  had  specified.  Vader,  jointly  indicted  with  Linsday,  was  per- 
mitted to  testify,  and  proved  the  killing  by  Linsday  with  an  axe.  He , 
was  convicted  and  the  judgment  affirmed,  there  being  no  error  in 
the  above  rulings.1 

Teeth  as  a  means  of  identity  —  age. 

.  §  251.  It  is  stated  in  Wharton  &  Stille  Med.  Jur.,  §  632:  "A 
singular  case  of  disputed  identity,  in  which  there  was  between  two 
persons  such  a  similarity  of  name,  time,  place,  age,  occupation,  and 
circumstances,  as  for  a  long  time  utterly  to  perplex  the  investigation, 
occurred  in  London.  The  body  of  a  woman  supposed  to  have  been 
murdered  was  missing,  and  another  woman  was  arrested  upon  sus- 
picion of  having  secretly  made  way  with  her  and  sold  her  remains 
for  dissection.  Both  direct  and  circumstantial  evidence  brought  the 
crime  home  to  her.  The  day  after  the  alleged  murder,  an  old 
woman,  of  the  description  of  the  supposed  deceased,  was  found,  with 
a  fractured  thigh,  lying  exhausted  in  the  street.  She  gave  her  name 
as  Caroline  Walsh,  and  said  that  she  was  from  Ireland.  She  died, 
and  was  burjed  at  the  London  Hospital.  The  name  of  the  missing 
woman  was  also  Caroline  "Walsh,  and  she  was  also  Irish.  The  pris- 
oner, Elizabeth  Ross,  when  arrested,  insisted  that  this  was  the  female 
whom  she  was  accused  of  having  murdered.  Various  points  of  dif- 
ference were  established  by  the  evidence  of  a  large  number  of  wit- 
nesses, but  the  chief  distinction  was,  that,  while  it  was  stated  that 
the  missing  woman  had  very  perfect  incisor  teeth  (a  remarkable 
circumstance  for  her  age,  which  was  eighty-four),  the  other  one,  who 
died  at  the  hospital,  had  no  front  teeth,  and  the  alveolar  cavi- 
ties corresponding  to  them  had  been  obliterated  for  a  considera- 
ble time.  Moreover,  the  non-identity  was  further  confirmed  by  the 
granddaughters  of  the  missing  woman,  who  swore  that  the  exhumed 
1  Linsday  v.  People,  63  N.  Y.  148. 


MURDER  —  IDENTIFICATION.  175 

body  of  Caroline  Walsh  was  not  that  of  their  grandmother.  Teeth 
may  determine  age.  The  first,  second  and  third  molars  are  cut  re- 
spectively in  the  seventh,  fourteenth,  and  twenty-first  year.  At  nine 
years  of  age  there  will  generally  be  twelve  permanent  teeth,  viz.: 
Eight  incisors  and  four  molars.  At  thirteen  years  there  will  be 
twenty-eight  teeth,  viz.:  Eight  incisors,  four  canines,  four  bicuspids 
and  four  molars.  In  examining  one  thousand  and  forty-six  children 
of  known  ages  Mr.  Saunders  found  that  out  of  seven  hundred  and 
eight  of  nine  years  of  age  three  hundred  and  eighty-nine  had  the 
full  development  of  teeth  for  their  age.  But  on  the  principle  urged 
by  him  that  where  the  teeth  of  one  side  are  fully  developed,  those  of 
the  other  side  should  also  be  reckoned,  five  hundred  and  thirty  came 
up  to  the  standard ;  of  the  remainder,  none  would  have  varied  more 
than  a  year  from  the  standard  —  and  these  always  by  deficiency. 
Again,  of  the  three  hundred  and  thirty-eight  children  of  thirteen 
years,  no  less  than  two  hundred  and  ninety-four  might,  from  their 
teeth,  have  been  pronounced  with  confidence  to  have  been  of  that 
age.  Of  the  remaining  forty-four,  thirty-six  would  have  been  judged 
to  have  been  in  their  thirteenth  year,  and  eight  at  or  about  the  com- 
pletion of  their  twelfth  year.  The  wisdom  teeth,  it  is  said  by  COCK- 
BURN,  C.  J.,  in  the  Tichborne  case,  are  "  the  last  to  come  and  the 
first  to  go."  But  the  last  part  of  this  assertion  is  by  no  means  uni- 
versally true.  And  the  teeth  as  a  rule  harden  with  age.  For  fur- 
ther knowledge  on  this  subject,  the  reader  is  referred  to  works  on 
dentistry.* 

*It  is  far  more  difficult  to  identify  the  dead  than  the  living,  where  resort  is  had  only  to  the 
features;  and  as  time  elapses  it  becomes  stiil  more  difficult,  and  even  though  the  death  be  sud-, 
den,  there  is  a  change,  at  once,  of  countenance,  of  expression,  from  that  seen  in  the  living 
and  the  setting  in  of  a  different  appearance;  and  gradually  all  the  former  expression  fades 
away,  beyond  recognition,  and  defies  all  identity;  and  finally,  the  only  means  of  identity  may 
perhaps  be  the  teeth;  as  to  these,  in  many  cases  resort  has  been  had,  where  the  face  has  lost  its 
shape  and  expression;  and  yet,  the  teeth,  then*  peculiar  shape,  size,  the  number  that  are  miss- 
ing, etc.,  is  not  conclusive,  though  it  may  be  received  in  evidence  as  a  link  in  the  chain  of  cir- 
cumstantial evidence  to  identify  the  deceased;  and  is  one  of  the  means  to  which  resort  may 
properly  be  had.  The  dentist  may  recognize  his  work  in  filling  teeth,  or  in  supplying  artificial 
teeth,  as  in  the  noted  Webster  trial  in  Boston,  for  the  murder  of  Dr.  Parkman;  not  as  expert 
testimony,  but  as  proof  of  a  fact.  But  this  is  by  no  means  conclusive  or  satisfactory.  In  State 
v.  Vincent,  24  Iowa,  which  was  an  indictment  for  the  alleged  murder  of  one  Claiborn  Showers, 
as  to  the  facts,  BECK,  J.,  said:  "  At  the  time  the  remains  of  the  murdered  man  were  found,  the 
head  had  been  severed  from  the  body,  and  was  by  a  physician  preserved  in  alcohol.  It  was  ex- 
hibited to  the  court  and  jury  at  the  trial.  Many  of  the  witnesses  for  the  State  identified  the 
head  as  that  of  Claiborn  Showers.  The  greater  portion  of  them  recognized  it  by  the  features 
alone;  others,  in  addition,  discovered  peculiar  marks  upon  the  teeth,  which  seemed  to  increase 
their  confidence  in  the  identity.  The  prisoner  proposed  to  prove  by  two  witnesses,  who  were 
physicians  and  surgeons,  and  whose  knowledge  and  attainments  in  their  profession  made  them 
familiar  with  the  natural  changes  through  which  a  human  body  must  necessarily  pass  after 
death,  that  on  account  of  these  natural  and  inevitable  changes,  it  was  not  possible  for  any  one 


176  THE  LAW  OF  IDENTIFICATION. 

Of  dead  body  or  its  remains  —  how  identified 

§  252.  Where  the  dead  body,  or  what  remains  of  it,  is  discovered, 
the  first  step  in  the  process  of  investigation  is,  to  make  due  proof  of 
the  corpus  delicti;  to  do  this,  the  first  step  is  identification  of  the 
deceased,  as  being  the  body  of  the  person  alleged  to  have  been 
killed.  And  where  the  body  is  discovered  soon  after  the  crime  has 
been  committed,  and  the  features  are  retained,  and  the  face  has  not 
been  disfigured  and  the  features  destroyed  by  the  violence  which 
caused  the  death,  or,  otherwise,  by  accident  or  decomposition,  the 
identification  is  often  made  by  direct  proof,  without  resort  to  uncer- 
tain circumstantial  evidence,  but  to  positive  proof  by  those  who  knew 
the  deceased  while  living.  But  where  the  features  are  by  any  means 
destroyed  or  disfigured  beyond  recognition,  then  resort  must  be  had  to 
circumstances,  such  as  natural  marks  on  the  body  of  the  corpse,  by 
articles  found  on  or  near  the  person,  or  by  the  clothing.  And  in  cases 
where  the  features  have  been  beaten  in  by  blows,  and  recognition 
rendered  impossible,  circumstances  must  furnish  the  means  of  iden- 
tification. Or  as  in  McCann's  case  in  Mississippi,  where  the  face  of 
the  deceased  had  been  eaten  by  hogs,  he  was  readily  identified  by 
circumstances  beyond  the  reach  of  controversy,  and  the  only  question 
was  the  identification  of  the  accused.1  Where  nothing  but  the  body 
is  found,  there  may  be,  and  often  is,  a  satisfactory  identification  fur- 
nished by  marks  of  a  peculiar  character,  objects  appearing  near  it, 
with  other  corroborating  circumstances,  as  in  Clewes  case  in  England,2 
where  deceased  was  recognized  after  twenty  years,  by  his  peculiar 
teeth,  a  carpenter's  rule  and  a  pair  of  shoes,  all  of  which  were  identified. 
But  in  all  examinations  of  skeletons  for  identification,  the  matter  of 
age  and  sex  should  receive  the  first  attention,  being  a  matter  of  first 
importance,  for  these  alone  may  at  once  determine  the  whole  ques- 
tion in  favor  of  the  accused,  and  obviate  the  necessity  of  further  ex- 
amination. 

Dead  body  burnt  —  proof  of  corpus  delicti. 

§  253.  A  curious  and  interesting  case,  though  revolting  in  the  de- 
tails of  its  enormity,  was  tried  on  an  indictment  in  North  Carolina 

1  McCann  v.  State,  13  S.  &  M.  (Miss.)  see  Webster's  case,  Bemis'  Rep.  80,  84, 
472-478.  85,  87. 

8  Rex  v.  Clewes,  4  Carr.  &  P.  221.   And 

to  identify  the  head.  The  court  refused  to  permit  this  to  go  to  the  Jury."  On  appeal  to  the  Su. 
preme  Court  this  ruling  of  the  court  below  was  sustained.  But  if  such  changes  do  take  place 
after  death,  it  Is  difficult  to  conceive  of  any  good  reason  why  such  testimony  should  not  have 
been  received  from  experts,  to  go  to  the  Jury  for  what  it  was  worth. 


MURDER  —  IDENTIFICATION.  177 

in  1860,"  involving  the  ideritity  of  the  alleged  deceased.  One  Wil- 
liams was  indicted  for  the  murder  of  Peggy  Isly.  It  appeared  that 
William  Isly  married  the  mother  of  deceased,  and  resided  half  a  mile 
from  defendant.  Evidence  tended  to  show  that  defendant  had,  for 
a^year  or  two,  criminal  intercourse  with  deceased.  She  left  the 
house  of  her  step-father  about  10  o'clock,  on  a  Thursday  night  in  De- 
cember, 1859,  and  carried  a  calico  frock,  two  petticoats  and  a  piece 
of  cloth,  and  was  never  again  seen.  Defendant  was  one  of  the 
special  court  of  Buckingham,  and  held  a  session  on  that  day,  and  he 
left  the  village  of  Weutworth  for  home  after  night,  about  seven  or 
eight  o'clock.  Several  days  thereafter,  the  neighbors  collected  to 
make  search.'  On  Sunday,  December  11,  they  examined  about 
Troublesome  creek,  which  flows  through  defendant's  land.  About 
six  hundred  yards  from  his  house,  in  a  private  place  near  the  creek, 
they  discovered  where  a  log  heap  had  been  burnt ;  some  logs  were 
still  burning ;  fragments  of  bone  were  among  the  ashes  and  were 
shown  to  the  defendant,  but  he  denied  knowing  any  thing  about  them. 
Most  of  the  bones  were  found  in  the  center  of  the  log  heap.  He 
was  informed  that  another  search  would  be  made ;  they  went  next 
day  and  found  the  burnt  place  had  been  dug  up  by  defendant's  di- 
rection. There  was  a  hollow  beach  tree  near  this  place,  and  on  the 
12th  it  was  on  fire.  On  January  23,  1860,  the  coroner  went  to 
that  creek,  to  make  further  search,  and  to  hold  an  inquest.  De- 
fendant said  the  burnt  place  was  intended  for  a  plant-bed,  and  had 
been  enlarged,  and  in  doing  so  the  beach  tree  had  burnt  down.  A 
black  substance  was  found  in  the  tree,  which  the  witnesses  called 
bones.  They  dragged  the  creek  and  found  bones,  three  hair  pins, 
three  common  pins,  a  button  and  a  hook  and  eye,  a  black  substance 
and  fire  coals,  similar  to  those  in  the  log  pile ;  these  were  preserved 
for  the  coroner  and  produced.  Four  physicians  and  one  dentist 
were  examined,  and  they  proved  or  recognized  part  of  a  human  skull, 
and  part  of  the  cheek  bone  of  a  human  being.  The  dentist  identified 
human  teeth  among  the  bones  exhibited.  The  defendant  said  he 
u  had  no  doubt  of  the  death  of  Peggy  Isly,  and  that  the  bones  found 
in  the  creek  were  hers ;  that  her  step-father  or  some  of  his  boys  had 
knocked  her  in  the  head  and  thrown  her  body  in  the  log  pile,  and 
he  did  not  blame  Isly  for  trying  to  get  his  head  out  of  the  halter  by 
putting  others  in."  The  articles  found  were  such  as  deceased  usually 
wore.  It  was  shown  not  to  be  the  time  to  burn  plant-beds.  He 
was  courting  another  girl  or  woman  at  the  time,  and  who  had  talked 
23 


178  THE  LAW  OF  IDENTIFICATION. 

to  him  about  the  deceased.  All  this  testimony  was  admitted,  he  was 
found  guilty,  and  this  was  affirmed.  The  rule  which  seems  at  one 
time  to  have  prevailed  in  England,  ' '  that  upon  charges  of  homicide, 
the  accused  shall  not  be  convicted  unless  the  death  be  distinctly 
proved  either  by  direct  evidence  of  the  fact  or  by  inspection  of  the 
body,  was  held  not  to  be  of  universal  application,  but  when  the 
identity  of  the  body  is  completely  destroyed  by  fire  or  other  means, 
the  corpus  delicti,  as  well  as  other  parts  of  the  case,  may  be  proved 
by  presumptive  or  circumstantial  evidence.1 

Same  —  strictness  in  proof  of  corpus  delicti. 

§  254r.  As  regards  the  English  rule  above  referred  to  by  the  North 
Carolina  court,  as  to  the  strictness  required  in  the  proof  of  the  corpus 
delicti,  referring  to  the  language  of  Sir  Matthew  Hale  on  the  sub- 
ject, Mr.  Best,  in  his  Principles  of  Evidence,  says :  "  In  most  of  cases 
the  proof  of  the  crime  is  separable  from  that  of  the  criminal ;  thus  the 
finding  of  a  dead  body,  or  a  house  in  ashes,  may  indicate  a  probable 
crime,  but  do  not  necessarily  afford  any  clue  to  the  perpetrator. 
And  here  again,  a  distinction  must  be  drawn,  relative  to  the  effect  of 
presumptive  evidence.  The  corpus  delicti  is  made  up  of  two  things : 
first,  certain  facts  forming  its  basis ;  and  secondly,  the  existence  of 
criminal  agency,  as  the  cause  of  them  Now  it  is  with  respect  to 
the  former  of  these  that  the  general  principles  of  Lord  STOWELL  and 
Sir  Matthew  Hale  especially  apply,  and  it  is  the  established  rule  that 
the  facts  which  form  the  basis  of  the  corpus  delicti  ought  to  be 
proved,  either  by  direct  testimony,  or  by  presumptive  evidence  of 
the  most  cogent  and  irresistible  kind."2  And  Bentham,  after  in- 
dorsing the  above  idea  as  to  presumptive  evidence,  says:  "Were  it 
not  so,  a  murderer,  to  secure  himself  with  impunity,  would  have  no 
more  to  do  but  to  consume  or  decompose  the  body  by  fire,  by  lime, 
or  by  any  other  known  chemical  menstrua,  or  to  sink  it  in  an  un- 
fathomable part  of  the  sea." 

Dead  body  found  in  the  water  —  death  by  drowning. 

§  255.  Perhaps  the  writer  of  this  work  would  do  as  well  to  give 
this  branch  of  this  subject  only  a  passing  notice;  it  may  be  said  to 
belong  to  a  different  science.  It  opens  up  a  broad  and  difficult  field, 
one  upon  which  experts  frequently  disagree,  as  they  do  in  many 
other  matters,  until  the  unprofessional  are  left  in  darkness  and  doubt ; 

1  State   v.  Williams,  7  Jones  (N.  C.),        *  Best  Prin.  of  Ev.  321. 
446.  And  see  Webster's  case,Bemis'  Rep. 
80,  84,  85,  87. 


MUKDEK  —  IDENTIFICATION.  1 79 

doubting  whether  their  testimony  arises  to  the  dignity  or  deserves  the 
name  of  evidence.  Many  of  the  writers  on  medical  j  urisprudence  have 
undertaken  to  lay  down  a  rule  or  test  by  which  to  determine  whether  a 
dead  body  found  in  the  water  had  actually  been  drowned,  or  whether 
the  person  was  first  killed  and  the  body  then  thrown  into  the  water ; 
most  of  these  tests  are  confessedly  unreliable,  since  they  depend  upon 
so  many  contingencies.  Candor  compelled  Dr.  Casper  to  treat  it  as 
uncertain,  and  the  tests  unreliable.  He  says :  "  The  question  which 
first  arises  is,  whether  death  was  actually  produced  by  drowning,  or 
whether  the  body  was  thrown  into  the  water  subsequently  to  death. 
This  latter  often  happens  in  cases  of  young  infants.  It  may  also  be 
possible  that  suicide  has  been  committed  by  some  other  means  even 
when  the  body  is  found  in  the  water,  as  the  party  may  have  inflicted 
some  mortal  wound  upon  himself  at  the  water's  edge,  or  while  stand- 
ing in  the  water.  In  these  cases  an  examination  of  the  body  will 
show  that  death  was  produced  by  some  other  means.  Injuries  found 
upon  the  dead  body  can  seldom  be  relied  on  as  showing  violent  treat- 
ment by  another  person;  these  injuries  may  have  been  produced  by 
the  party  himself  in  an  attempt  at  suicide,  and  drowning  been  after- 
ward resorted  to,  or  they  may  have  been  produced  by  striking  against 
some  object  in  the  act  of  drowning,  or  they  may  have  been  caused 
by  the  body  after  death  coming  in  contact  with  floating  ice,  stays  of, 
bridges,  a  ship's  rudder,  or  other  colliding  objects.  Where  the  pro- 
cess of  decomposition  is  considerably  advanced,  it  will  be  very  diffi- 
cult to  distinguish  between  the  appearances  which  result  from  de- 
composition and  suggillations  produced  by  violence  done  to  the  living 
body ;  and  here  even  experienced  physicians  may  be  deceived.  In 
this  as  in  all  other  cases,  some  light  may  be  thrown  upon  the  ques- 
tion by  the  circumstances  attending  the  particular  case  ;  as,  for  in- 
stance, where  the  body  is  naked  and  the  season  a  proper  one  for 
bathing,  the  probability  will  be  accidental  drowning ;  and  so  where 
the  deceased  was  a  person  whose  business  was  on  the  water.  On  the 
other  hand,  traces  of  blood  upon  the  shore,  torn  clothing,  articles  of 
clothing  belonging  to  another  person  may  indicate  probable  murder. 
Whether  the  water  is  deep  or  shallow,  a  dirty  pond  or  fresh  pool, 
may  serve  to  throw  light  upon  the  question  ;  although  it  may  some- 
times happen  that  a  drunken,  feeble  or  epileptic  person  may  be 
drowned  in  shallow  water,  or  in  a  ditch  or  fetid  pond."* 

*Mr.  Wharton  in  his  Criminal  Evidence  (8th  ed.)  note  to  §  804  on  identity  of  a  dead  body,  gives 
the  charge  of  the  court  to  the  jury  as  to  the  remains  of  one  Weston,  the  murdered  man,  as  re- 
ported in  Lowenstein's  trial,  p.  332.  Judge  LEARNED  thus  sums  up  the  evidence  of  identity  of  the 


180  THE  LAW  OF  IDENTIFICATION. 

Body  exhumed  three  times  —  identified  by  the  teeth. 

§  256.  A  singular  case  is  given  by  Dr.  Casper  of  identification  by 
the  teeth,  after  the  body  has  been  exhumed  the  third  time.  Schall 
was  suspected  of  the  robbery  and  murder  of  Ebermann,  who  had 
disappeared.  At  the  first  exhumation  of  the  body  claimed  to  be 
that  of  Ebermann,  a  woman,  a  stranger  in  the  neighborhood,  swore 
that  the  body  was  that  of  her  husband,  who  had  recently  disappeared, 
an  allegation  which  was  chargeable  either  to  delusion  on  her  part 
or  to  complicity  with  Schall.  Five  months  afterward  the  body  was 
again  exhumed,  for  the  purpose  of  determining  whether  it  exhibited 
certain  tattoo  marks  similar  to  those  proved  to  have  been  on  the 
person  of  Ebermann  ;  but  decomposition  had  so  far  progressed  as  to 
make  this  method  of  identification  impossible.  Two  years  and  a 
half  after  the  first  burial,  the  head  (which  had  been  cut  off  in  the 
murder)  was  for  the  third  time  exhumed;  the  ground  being  that 
Ebermann's  mistress  claimed  that  his  teeth  were  so  peculiar  that  she 
could  at  once  identify  them.  The  skull  was  submitted  to  Casper 
for  examination.  One  question  to  be  determined  was  whether 
the  fatal  shot  had  pierced  from  behind  the  left  ear  into  the  head. 
This  question,  from  the  shattered  or  decayed  condition  of  the  bones, 
could  not  be  definitely  answered.  The  teeth,  however,  remained 

remains  :  "  The  question  for  you  is,  was  that  body  John  D.  Weston's  body?  The  facts  are,  first, 
that  it  was  the  body  of  a  one-armed  man ;  the  same  arm  was  gone  in  both  cases .  Another  fact  to 
which  the  physicians  testify  is  the  peculiar  flexibility  of  the  finger.  There  is  some  discrepancy 
as  to  whether  it  was  the  same  finger  in  the  body  as  with  Weston,  I  think.  The  third  peculiarity 
was  the  separation  of  the  teeth,  they  were  further  apart  than  usual;  that  peculiarity  is  said  to 
have  existed  in  both.  As  to  the  size  and  mode  of  wearing  a  moustache,  the  man  is  said  to  be,  I 
think,  of  such  a  size  as  to  correspond  with  John  D.  Weston.  Then  you  have  the  further  fact 
about  the  coat,  pantaloons  and  vest,  and  I  think  the  shoes  and  hat,  and  the  alpaca  coat;  they 
are  all  identified  by  John  D.  Weston's  wife.  You  will  remember  if  I  am  wrong  in  the  details. 
She  testified  to  the  shortening  of  the  pantaloons  and  to  mending  the  coat;  there  is  also  a  pair  of 
eye-glasses  which  I  think  she  identified.  At  any  rate  she  says  she  fastened  a  similar  pair  to  his 
suspenders."  In  Goldsborough's  case,  one  Huntly  was  murdered  in  1839,  and  the  body  found 
in  1841,  by  an  open  drain.  The  chief  point  of  Identification  relied  on  was  a  peculiar  tooth  which 
Huntly  had  on  one  side  of  his  head.  Only  one-half  of  the  bones  of  the  body  were  found,  and 
none  of  the  clothing  was  discovered.  The  skull  was  fractured  and  filled  with  dirt,  and  no  flesh 
remained.  Asto  the  tooth  Mr.  Warren  says  (in  Blackwood,  1845,  p.  106):  "When  first  discov- 
ered it  would  appear  that  there  was  a  very  prominent  tooth  on  the  left  side  of  the  lower  jaw, 
which  arrested  the  attention  of  all  who  saw  it;  but  soon  afterward,  owing  to  the  inconceivable 
carelessness  and  stupidity  of  those  Intrusted  with  it,  and  who  permitted  every  idle  visitor  to 
have  free  access  to  It,  the  tooth  In  question,  alas,  was  lost.  I  confess  i  have  seldom  e: 
enced  such  a  rising  of  indignation  as  when  this  remarkable  deficiency  of  evidence  was  thus 
accounted  for  "  He,  "the  Judge,"  left  it  fairly  to  the  jury,  to  judge  whether  sufficient  had 
been  done  to  satisfy  them  beyond  all  reaxon-ible  doubt  that  the  bones  produced  were  those 
Huntly,  but  accompanied  by  a  strong  expression  of  his  own  opinion  that  the  evidence  was 
'of  an  unsatisfactory  nature.  Unless  they  were  satisfied  on  tliat  head  there  was  an  end  of  I 
case;  for  the  very  first  step  failed  proving  that  Huntly  was  dead.  If,  however,  on  the  whole 
of  the  facts,  they  should  be  satisfied  In  the  affirmative,  then  come  the  other  two  great  questions 
In  the  case,  had  Huntly  been  murdered?  and  by  the  defendant  at  the  bar? "  There  was  a. 
prompt  verdict  of  acquittal. 


MUBDER  —  IDENTIFICATION.  181 

unaffected  by  decay.  These  were  recognized  by  the  mistress  of 
Ebermann  at  the  first  glance.  To  Casper  was  put  the  question  whether 
the  teeth  met  the  description  previously  given  by  the  brother  of  the 
deceased.  He  answered  that  there  was  a  similarity,  but  not  such  as 
would  justify,  on  this  ground  alone,  a  positive  identification.  The 
result  of  the  third  exhumation  was  to  produce  evidence  consistent  with 
the  hypothesis  of  Schall's  guilt,  and,  so  far  as  concerns  the  testi- 
mony of  deceased's  mistress,  positively  confirmatory  of  that  hypoth- 
esis, by  the  teeth  alone.1 

Artificial  teeth  —  identity  after  eleven  years. 

§  257.  Another  case  is  given  to  the  effect  that  the  body  was  iden- 
tified eleven  years  after  burial.  A  widow,  Mrs.  V.,  died  in  .1848,  of 
pain  in  the  stomach  and  vomiting,  which  lasted  four  days ;  foul 
play  was  suspected,  but  no  examination  was  made  for  eleven  years. 
Suspicion  rested  upon  her  husband  arid  his  second  wife.  The  coffin 
was  opened  in  1859.  It  exhibited  a' human  skeleton,  and  the  first 
point  was  to  identify  this  with  Mrs.  V.  Relatives  testified  that  she 
had  four  artificial  teeth  connected  by  a  gold  band.  There  was  much 
testimony  as  to  other  means  of  identity,  all  of  which  was  unsatisfac- 
tory ;  but  in  taking  the  skull  out  of  the  sand,  four  artificial  teeth 
connected  by  a  gold  band,  fell  out,  and  these  the  witness  at  once 
positively  identified  as  belonging  to  the  deceased.  Two  firm  back 
teeth  remained  on  the  upper  jaw,  and  in  the  under  jaw  eight  teeth 
remained  firm  and  unaffected  by  time  or  decay.2 

Murder  —  identity  of  deceased  by  name. 

§  258.  One  Penrod  was  indicted  for  killing  "  Robert  Kain."  On 
the  trial  the  witnesses  called  the  deceased  "  Kain,"  without  giving 
any  Christian  name.  The  variance  was  held  fatal,  and  the  conviction 
was  reversed.  The  court  remarked :  "  The  indictment  under  which 
the  defendant  was  convicted  charged  him  with  murdering  Robert 
Kain.  There  is  no  evidence  in  the  record  that  the  party  killed  was 
named  "  Robert  Kain."  He  is  called  by  the  witnesses  "  Kain  "  only, 
without  giving  any  Christian  name.  This  is  indistinguishable  from 
Davis  v.  People,  19  111.  74,  where  it  was  held  that  such  variance  be- 
tween the  averment  in  the  indictment  and  the  evidence  is  fatal. 

1  Whart.  Cr.  Ev.,  §  805,  n.  Citing  which  depended  mainly,  for  its  identifi- 

5th  ed.  Casper's  Gericht  Med.  (Liman's  cation,  upon  the  peculiarity  of  the  teeth 

ed.  Berlin,  1871.  Bd.  ii,  s.  120.)  twenty-one  years  after  burial.  See,  also, 

9  Whart.  Cr.  Ev.  (8th  ed.),  §  805,  n.  Webster's  case  in  Massachusetts,  as 

And  see  Clewes'  case,  4Carr.  &  P.  221,  given  in  Bemis'  Rep.  80,  84,  85,  87. 


182  THE  LAW  OF  IDENTIFICATION. 

In  Shepherd  v.  People,  72  111.  480,  cited  by  the  attorney-general, 
there  was  evidence  describing  the  deceased  and  his  vocation  —  that 
of  barber  —  which  unmistakably  identified  his  name  with  that 
averred  in  the  indictment.  There  is  no  such  proof  here."1  It  would 
seem  difficult  to  reconcile  this  with  the  two  cases  referred  to.  ID  the 
one  case  the  witness  said  "  Kain  "  but  did  not  say  "  Robert  Kain." 
In  Shepherd's  case  the  witness  gave  no  name  at  all,  but  called  the 
deceased  "  the  barber,"  and  that  was  held  to  be  satisfactory.  It  can- 
not be  presumed  that  the  jury  knew,  or  that  the  court  judicially 
knew  that  there  was  but  one  barber  in  the  town. 

Same  —  initials  —  rule  in  Georgia. 

§  259.  In  an  early  case  in  Georgia,  one  Mitchum  was  indicted  for 
the  murder  of  "  William  R.  Morris,"  and  the  proof  showed  that  it 
was  "  W.  R.  Morris  "  who  was  killed.  As  to  proof  of  identity  of  the 
deceased  the  court  left  it  to  the  jury  to  determine  the  question,  and 
this  was  held  to  be  correct,  though  the  verdict  of  guilty  was  re- 
versed and  the  cause  remanded  for  a  new  trial  upon  another  ground 
altogether.  Upon  this  point  the  court,  NISBET,  J.,  delivering  the 
opinion,  merely  remarked,  that  "  the  jury  had  the  right  to  consider 
the  question  of  identity,  not  alone  in  the  light  of  all  the  attendant 
circumstances.  They  were  satisfied  with  the  identity,  as  is  evidenced 
by  their  verdict,  and  we  will  not  disturb  it  on  this  account."  This 
may  have  been  right,  but  the  Illinois  cases  above  do  not  seem  to 
fully  harmonize  with  it.  While  it  is  true  that  the  question  of  iden- 
tity is  one  of  fact,  it  must  be  proved  like  other  facts  to  warrant  a 
verdict  of  guilty,  and  especially  in  a  trial  for  murder.2 

Same  —  murder  —  rule  in  Texas. 

§  260.  In  Texas  in  1880,  one  Hunter  was  tried  on  an  indictment 
charging  him  with  the  murder  of  one  "  William  Redus."  There 
was  evidence  to  show  that  the  true  surname  of  the  deceased  was 
"  Reder,"  but  that  he  was  known  and  often  called  "  Redus."  The 
court  charged  that  if  the  jury  so  found  the  fact,  it  was  immaterial 
whether  Redus  was  the  true  name  or  not,  and  this  was  held  to  be 
correct.  The  counsel  for  the  defense  asked  and  the  court  refused  to 
charge  the  jury  as  follows :  "  That  the  defendant  is  indicted  and 
placed  upon  trial  for  killing  William  Redus,  and  if  the  jury  find, 
from  the  evidence,  that  the  deceased's  name  was  William  Reder, 
1  Penrod  v.  People,  89  111.  150.  -  *  Mitchum  v.  State,  11  Ga.  615. 


MUKDER  —  IDENTIFICATION.  183 

and  not  William  Redus,  then  there  is  a  variance  between  the  name 
charged  in  the  indictment  and  the  proof,  and  the  jury  will,  in  this 
event,  find  the  defendant  not  guilty."  This  was  properly  declined. 
The  court  said :  "  Whilst  it  is  considered  that  the  special  charge 
asked  and  refused  enunciates  a  correct  principle  of  law,  yet,  the 
court  having  given  substantially  the  same  principle,  it  was  not  in- 
cumbent on  him  (the  court)  to  repeat  it  at  the  request  of  the  de- 
fendant."1 

Same — assault  and  battery — rule  in  Texas. 

§  261.  In  another  Texas  case  in  1849,2  one  Cotton  was  indicted 
for  assault  and  battery.  The  name  of  the  injured  party  occurred 
three  times  in  the  indictment.  1.  Francis  Hubble.  2.  Francis  Hubles. 
3.  Francis  Hubbies.  The  proof  showed  the  true  name  to  be  Francis 
Hubble.  It  was  held  that  an  indictment  was  sufficient  in  respect  to 
the  description  of  the  person  injured,  if  it  be  certain  to  a  common 
intent  —  if  it  be  sufficiently  explicit  to  inform  the  prisoner  who  are 
his  accusers.  If  the  name  of  the  person  injured  be  correctly  stated 
where  it  occurs  the  first  time  in  the  indictment,  subsequent  state- 
ments of  it,  in  which  there  is  an  apparent  variation,  may  be  rejected 
as  surplusage.  If  a  party  be  known  by  one  name  as  well  as 
another,  he  may  be  described  by  either.  As  where  the  property  stolen 
was  laid  in  the  indictment  as  the  property  of  Steven  Harris,  and  it 
appeared  that  the  name  of  the  owner  was  Harrison,  but  he  was 
sometimes  called  Harris,  the  variance  was  held  to  be  immaterial.3 
And  so  in  this  case  the  judgment  was  affirmed. 

Murder  —  blood  spots  on  boards  identified. 

§  262.  Linsday  and  Yader  were  jointly  indicted  for  the  murder 
of  Calvin,  and  Linsday  was  put  on  trial  separately.  A  body,  identi- 
fied as  that  of  the  alleged  murdered  man,  was  discovered  in  the 
Seneca  river  on  June  22,  1874,  with  skull  fractured.  The  evidence 
tended  to  identify  certain  boards  taken  from  the  prisoner's  sleigh, 
with  spots  caused  by  the  flow  of  blood  from  the  body  of  the  dead 
man,  that  had  remained  there  since  the  night  the  body  was  alleged 
to  have  been  removed ;  and  there  was  no  evidence  that  they  had 
been  tampered  with  subsequently,  or  were  in  any  different  condi- 
tion, except  that  hogs  had  been  dressed  upon  them.  Expert  evidence 

1  Hunter  v.  State,  8  Tex.  App.  75.  Com.  v.  Hunt,  4  Pick.  252;  1  Chitty  Cr. 

9  Cotton  v.  State,  4  Tex.  260.  L.  216,  217. 

8  State    v.    France,    1  Overton,  434; 


184  THE  LAW  OF  IDENTIFICATION. 

was  received  as  to  certain  experiments  determining  that  some  of  the 
spots  on  the  boards  were  the  blood  of  hogs,  and  some  human  blood. 
This  was  held  to  be  properly  admitted  in  evidence  ;  and  the  fact 
that  the  boards  had  long  been  out  of  the  prisoner's  possession  and 
used  bj  others,  while  it  affected  the  question  of  identity  of  the 
boards  and  the  spots,  did  not  render  them  inadmissible  in  evi- 
dence.1 

Same  —  tracks  and  a  mask  found. 

§  263.  One  Murphy  was  convicted  for  the  murder  of  Matilda 
Hugus,  by  gun  or  pistol  shot,  on  April  19,  1874,  as  the  evidence 
tended  to  show,  by  some  one  standing  outside  of  the  house,  in 
which  deceased  and  a  brother-in-law  of  prisoner  resided,  and  near 
the  window  where  they  were  sitting  when  the  shot  was  tired.  The 
shot  went  through  a  pane  of  glass  and  into  the  brain  of  deceased, 
from  which  she  died  instantly.  The  imprint  of  footsteps  was  found 
on  the  night  of  the  murder  on  a  flower-bed  near  and  under  the 
window  through  which  the  shot  was  fired,  and  evidence  was  given 
that  it  corresponded  in  size  with  a  boot  found  in  the  prisoner's  house 
on  the  following  day.  The  witness  who  measured  the  footprints,  in 
reply  to  a  question  as  to  what  were  the  measurements  taken  by  him, 
commenced  his  answer  by  stating  "  I  measured  from  the  outside  of 
the  flower-bed  where  the  man  stood,"  and  then  an  objection  being 
made,  he  said,  "  from  where  the  footprints  were  up  to  the  window 
where  the  shot  went  in,  was  five  feet  three  and  a  half  inches ;  inside, 
two  feet  and  eleven  inches.  I  had  a  man  sit  in  a  chair  and  measured 
from  the  floor  to  the  top  of  his  head."  After  the  murder  and  on 
the  same  evening  a  mask  was  found  under  the  window  where  the 
shot  was  fired.  During  a  conversation  with  the  witness  Pinkerton, 
Schute  asked  the  prisoner  where  that  mask  came  from  ?  and  he 
answered,  "  the  children  got  it  from  the  ragamuffins  ;  "  then  added, 
"that  mask  had  a  black  nose,  and  was  torn  down  the  face."  The 
conviction  was  affirmed.2 

Identity  of  window  —  skeleton  —  murder  trials. 

§  264.  On  a  trial  for  murder  in  Massachusetts,  a  witness  testified 
that  he  saw  the  prisoner,  about  the  time  the  murder  was  alleged  to 
have  been  committed,  iump  out  of  the  window  of  a  church,  and  that 
he  pointed  out  the  window  to  an  officer  soon  thereafter.  It  was 
held  competent  for  the  prosecution  to  show  by  the  officer,  in  order 

1  Linsday  v.  People,  63  N.  Y.  145.  »  Murphy  v.  People,  63  N.  Y.  590. 


MURDEK  —  IDENTIFICATION.  185 

to  more  clearly  identify  the  window  to  which  the  witness  had  re- 
ferred.1 McCulloch  was  indicted  in  Indiana  for  the  murder  of  one 
Morgan.  The  evidence  showed  that  a  skeleton  was  found,  of  the 
sex  and  size  of  the  person  alleged  to  have  been  murdered.  This 
was  held  sufficient  evidence  of  the  corpus  delicti  to  justify  the  ad- 
mission of  circumstantial  evidence  to  identify  the  skeleton  of  the 
party  alleged  to  have  been  killed,  and  also  to  show  the  manner  in 
which  he  came  to  his  death.  A  witness  at  the  trial  testified  that  in 
several  conversations  the  prisoner  had  spoken  of  having  killed  a  man 
by  the  name  of  Morgan,  the  name  of  the  man  alleged  in  the  in- 
dictment to  have  been  murdered,  but  in  one  conversation  he  stated 
that  he  was  innocent  of  the  crime  ;  but  it  did  not  appear  affirmatively 
that  the  declaration  of  innocence  was  in  the  same  conversation  in 
which  he  made  the  confession  of  guilt.  It  was  held  that  it  could  not 
be  assumed  that  the  assertion  of  his  innocence  was  necessarily  made 
in  the  same  conversation  in  which  he  had  said  that  he  had  killed 
Morgan.2  If  it  had  been  in  the  same  conversation,  the  defendant 
would  have  been  entitled  to  the  benefit  of  it.  When  one  side  brings 
out  a  part  of  a  conversation,  the  other  side  may,  if  they  desire,  bring 
out  the  whole  of  it,  that  it  may  be  fully  understood.  The  law  does 
not  intend  that  a  fragment  or  a  garbled  extract  of  a  conversation 
shall  go  to  the  jury. 

Anarchists'  trial  —  dynamite  bombs  —  comparison  —  identity. 

§  265.  On  the  trial  of  the  celebrated  case  of  the  anarchists  in  Chi- 
cago for  the  murder  of  the  policeman  with  dynamite,  after  the  proof  of 
the  manufacture  and  use  of  bombs,  it  became  necessary,  and  the  court 
admitted  in  evidence  similar  bombs,  manufactured  by  the  same  man, 
to  identify  the  means  and  weapons  used  by  them  to  destroy  human 
life.  The  policeman  for  whose  murder  Spies  and  others  were  tried 
was  killed  by  a  bomb  thrown  and  exploded  in  the  midst  of  the  police 
force.  The  court,  on  the  trial  of  the  prisoners,  allowed  the  prosecu- 
tion to  produce  and  give  in  evidence  bombs  and  cans  containing 
dynamite,  and  prepared  with  contrivances  for  exploding  it,  which 
bad  been  found  under  sidewalks  and  buried  in  the  ground  at  cer- 
tain points  in  the  city,  placed  there  by  certain  of  the  conspirators,  as 
specimens  of  the  kind  of  weapons  which  Lingg,  the  one  of  the  con- 
spirators who  had  charge  of  their  manufacture,  and  his  associates 
were  preparing ;  not  only  as  showing  the  identity  of  the  means  and 

1  Com.  v.  Piper,  120  Mass.  185.  s  McCulloch  v.  State,  48  Ind.  109. 

24 


186  THE  LAW  OF  IDENTIFICATION. 

weapons  prepared,  manufactured  and  used  by  them,  but  also  as  show, 
ing  the  malice  and  evil  heart  indicated  by  the  use  of  such  vile,  dan- 
gerous and  destructives  means,  apph'ances  and  weapons. 

The  introduction  of  these  bombs,  cans,  etc.,  manufactured  by  Lingg, 
one  of  the  conspirators,  was  held  by  the  Supreme  Court  not  to  be 
improper  to  go  to  the  jury  to  aid  them  in  their  determination.  The 
jury  had  the  right  to  see  them  and  to  compare  their  structure 
with  the  description  given  by  the  witnesses  of  the  bomb  with  which 
they  killed  the  deceased  policeman,  with  a  view  of  determining 
whether  the  defendant  Lingg,  as  was  charged,  was  the  manufacturer 
of  the  latter  bombs  or  not.  The  fact  that  some  of  these  bombs 
and  cans,  like  some  of  those  which  had  been  shown  to  certain  of  the 
conspirators  during  the  time  of  their  drill,  were  found  buried  near 
one  of  the  places  designated  for  their  meeting,  where  certain  of  the 
armed  men  were  to  assemble  on  the  night  of  the  attack  on  the  police, 
was  held  to  be  a  circumstance,  proper  to  be  considered  by  the 
jury  in  their  determination  of  the  nature  and  character  of  the  con- 
spiracy, and  its  connection  with  the  events  of  the  night  of  the 
murder.1* 

Dress  —  a  circumstance  of  human  identity. 

§  266.  Mr.  Burrill  in  his  work  on  Circumstantial  Evidence,  speak- 
1  Spies  v.  People,  122  111.  1. 

*Mr.  Burrill,  In  his  Circumstantial  Evidence  at  p.  635,  says:  "  The  two  leading  descriptions  of 
persons  which  most  frequently  become  the  subjects  of  identification,  in  the  course  of  judicial 
inquiry  into  crime,  are,  first,  the  person  of  the  subject  of  the  crime;  and,  secondly,  the  author 
of  the  crime:  1 .  Identification  of  the  person  of  the  .subject  of  the  crime.  This  is  one  of  the 
earlist  processes  which  becomes  necessary  in  the  cases  of  homicide,  and  forms  an  essential  part 
of  the  proof  of  the  corpus  delicti.  2.  Identification  of  the  person  of  the  criminal.  The  circum. 
stances  which  go  to  identify  an  accused  party  as  connected  with  a  cr  ime  charged,  are  of  two 
principal  kinds;  first,  those  of  a  remote  or  more'minute  character,  the  in  ferences  from  which  are 
approximations  to  identification,  and  which  chiefly  serve  to  narrow  the  range  of  persons  within 
which  the  particular  criminal  agent  is  to  be  sought;  their  principal  use  being  to  introduce  and 
aid  by  proof  of  more  proximate  circumstances;  and  secondly,  circumstances  which  more  directly 
connect  the  accused  individual  with  the  transaction,  and  which  in  their  effect  often  amount  to 
direct  identification.  1 .  The  direction  and  appearance  of  wounds  upon  the  body  of  a  murdered 
person,  especially  such  as  have  been  inflicted  by  firearms,  often  serve  to  indicate  the  distance  at 
which  the  murderer  stood,  and  the  position  which  he  occupied  while  inflicting  them,  and  thus 
have  an  effect  to  confirm  an  hypothesis  based  upon  other  facts  and  inferences. ' '  Referring  to  the 
case  of  McCann  v.  State,  138.  &  M.  (Miss.)  472  (decided  in  1850),  as  an  apt  illustration  of  this  view. 
In  that  case  McCann  murdered  one  Andrew  Toland.  No  known  enmity  had  existed  between  the 
deceased  and  the  accused;  various  circumstances  pointed,  more  or  less  directly,  to  the  accused. 
He  was  an  intimate  friend  of  a  son  of  the  deceased .  They  were  together  in  the  most  intimate 
relations  on  the  day  before  the  murder  occurred  at  night  on  the  highway.  The  deceased  and 
the  accused  traveled  on  the  same  road  about  dark,  and  just  before  the  murder  — the  prisoner 
riding  a  large,  tall  horse,  and  the  deceased  riding  a  small  horse.  The  shot  took  effect  in  the  back 
of  the  neck,  and  ranged  downward,  showing  that  the  murderer  occupied  a  position  above  that 
of  the  deceased.  This,  though  alone  insufficient,  served,  with  other  circumstances,  to  identify 
the  accused  as  the  perpetrator  of  the  crime 


MURDER  —  IDENTIFICATION.  187 

ing  of  dress  as  a  means  of  human  identity,  says  :  "  Dress  is  usually 
one  of  the  first  circumstances  observed  in  the  appearance  of  a  per- 
son, and  where  it  is  in  any  degree  peculiar,  furnishes  important 
means  of  identification.  *  *  *  It  is  the  exterior  clothing,  how- 
ever, including  the  hat,  which  ordinarily  makes  the  first  and  most 
lasting  impression  upon  the  sense  of  sight.  *  *  *  But  in  one 
respect  the  circumstance  of  dress  is  less  reliable  than  any  other  ob- 
served appearance,  it  being  frequently  assumed  for  the  very  purpose 
of  disguise."1  The  sad  comment  is,  that  dress  is  sometimes  more 
observed  and  noticed  than  the  person  who  wears  it,  and  often  more 
easily  identified,  because  more  observed ;  and  hence  less  reliable  as 
a  means  of  human  identity.  In  this  connection  Mr.  Ram  gives, 
what  we  will,  for  the  sake  of  society,  charitably  call  an  imaginary 
interview,  thus :  " '  May  I  ask  her  appearance  sir,'  said  Tressilian  ? 
"  'Oh !  sir,"  replied  Master  Goldthread,'  I  promise  you  she  was  in  gen- 
tlewoman's attire  —  a  very  quaint  and  pleasing  dress  that  might  have 
served  the  queen  herself;  for  she  had  a  forepart,  with  body  and 
sleeves  of  ginger-colored  satin,  lined  with  Murrey  taffeta,  and  laid 
down  and  guarded  with  two  broad  laces  of  gold  and  silver.  And 
her  hat,  sir,  was  truly  the  best  fashioned  thing  that  I  have  seen,  be- 
ing of  tawny  taffeta,  embroidered  with  scorpions  of  Venice  gold,  and 
having  a  border  garnished  with  gold  fringe.  Touching  her  skirts, 
they  were  in  the  old  pass-devout  fashion.'  '  I  did  not  ask  you  of 
her  attire,  sir,'  said  Tressilian,  '  but  of  her  complexion  — the  color  of 
her  hair,  her  features.'  'Touching  her  complexion,'  answered  the 
mercer,  '  I  am  not  so  special  certain ;  but  I  marked  that  her  fan  had 
an  ivory  handle,  curiously  inlaid,  and  then  again  as  to  the  color  of 
her  hair,  I  can  warrant,  be  its  hue  what  it  might,  that  she  wore 
above  it  a  net  of  green  silk-parcel  twisted  with  gold.'  '  A  most  mer- 
cer-like memory,' said  Lamborne ;  'the  gentleman  asked  him  of 
the  lady's  beauty,  and  he  talks  of  her  fine  clothes.' "  In  such  a  case, 
and  with  such  a  witness  as  the  mercer,  a  slight  change  in  attire 
would  destroy  every  means  of  recognition,  and  render  him  an  unre- 
liable sort  of  witness  to  prove  the  identity  of  the  person. 

Murder  —  pistol  —  examined  by  jurors. 

§  267.  On  the  trial  of  an  indictment  for  murder  in  Georgia,  it 
was  held  that  a  pistol,  although  it  had  been  fired  off  after  the  en- 
counter was  over,  might  go  to  the  jury  for  their  examination  and 

1  Burrill  Cir.  Ev.  639. 


188  THE  LAW  OF  IDENTIFICATION. 

inspection,  and  its  condition,  as  found  at  the  close  of  the  fight,  may 
be  described  by  witnesses  who  saw  it  then  and  before  it  was  altered 
by  firing  ;  but  no  experiment  by  firing,  or  otherwise,  if  made  with- 
out defendant's  consent,  and  after  the  homicide,  should  be  permitted 
to  go  to  the  jury  in  evidence,  as  it  was  said  it  might  result  in  the 
manufacture  of  testimony  against  the  accused  after  the  cessation  of 
hostilities.  And  it  was  held  that  the  witness  might  testify  about 
the  appearance  of  the  pistol  and  cartridges  immediately  after  the 
fight,  so  as  to  identify  the  same,  its  condition,  whether  it  had  been 
snapped  or  not,  and  facts  generally  concerning  the  pistol  immedi- 
ately after  the  fight  which  resulted  in  the  homicide.1 

Same  —  opinion  evidence  —  rule  in  Texas. 

§  268.  Cooper  was  indicted  and  convicted  for  the  murder  of  Fort- 
son  in  Texas ;  they  had  been  fire-hunting  for  deer  in  the  night,  were 
neighbors  and  friends  and  often  hunted  together ;  deceased  had  killed 
one  deer  and  wounded  another,  and  they  were  returning  home  alone, 
on  horseback,  prisoner  carrying  the  deer  and  deceased  carrying  the 
lamp,  about  twenty  yards  in  the  rear  (as  related  by  prisoner),  when 
deceased  was  shot  and  killed.  Prisoner  gave  the  first  information, 
by  awakening  Dr.  Phillips  and  Mr.  Henry,  and  stating  to  them,  sub- 
stantially as  above ;  and  that  when  he  heard  the  gun  fired,  deceased 
exclaimed  "  Cooper,  I  am  shot."  That  he  fell  and  the  lamp  was  ex- 
tinguished, and  he  died  almost  instantly.  The  wound  was  in  the 
back,  and  his  coat  was  burned  or  crisped,  where  the  load  entered  the 
body.  Several  witnesses  stated,  as  their  opinion,  that  the  gun  must 
have  been  very  near  him  —  from  two  to  twelve  feet ;  other  witnesses 
gave  opinions  as  to  his  position  on  horseback,  and  the  range  of  the 
balls ;  others  again  from  the  density  of  the  forest  and  the  impossibil- 
ity of  the  murderer  having  escaped,  unobserved,  and  as  to  the  man- 
ner in  which  the  deed  was  done.  The  conviction  was  reversed  be- 
cause the  court  admitted  non-experts  to  give  opinions  in  evidence. 
BELL,  J.,  said:  "I  may  feel  a  strong  conviction,  not,  however, 
amounting  to  certainty,  that  a  man  who  stands  before  me  in  a  court- 
room to-day  is  the  same  man  whom  I  knew  ten  years  ago,  in  a  dis- 
tant part  of  the  world  ;  I  cannot  explain  to  others  the  grounds  of 
my  strong  belief,  yet  this  belief  amounts  to  a  species  of  knowledge. 
If  called  as  a  witness,  I  may  express  rny  opinion  that  the  man  before 
me  is  the  same  man  whom  I  knew  in  another  place.  My  opinion 
1  Wynne  v.  State,  56  Ga.  113. 


MUBDEK  —  IDENTIFICATION. 

is  entitled  to  some  weight,  because  it  is  the  statement  of  a  fact,  about 
which,  to  be  sure,  I  cannot  speak  with  absolute  certainty  ;  but  yet 
with  so  much  certainty  as,  perhaps,  to  satisfy  the  minds  of  others 
that  the  thing  stated  is  a  fact.1 

Killing  with  a  dirk  —  identity  of  weapon. 

§  269.  An  important  question  arose  in  a  murder  trial  in  Virginia 
in  1827.  It  depended  upon  the  identification  of  the  dirk,  by  witnesses 
who  had  seen  it,  or  one  like  it,  in  the  possession  of  the  accused,  and 
they  could  only  speak  from  the  general  appearance  of  the  weapon. 
It  had  not  been  seen  in  his  possession  for  a  considerable  length  of  time 
prior  to  the  homicide.  It  was  found  about  one  hundred  yards  from 
the  dead  body  of  Moseby,  the  deceased,  and  had  no  blood  on  it. 
This  circumstance  was  weak,  and  the  corroborating  circumstances 
were  remote  in  point  of  both  time  and  place.  The  court  was  divided, 
but  a  majority  refused  a  writ  of  error.2 

Murder  —  circumstances  —  suspicion  —  insufficiency. 

§  270.  Objects  are  often  found  at  or  near  the  scene  of  a  crime 
which  are  not  the  instruments  of  it ;  but  which  yet  become  of 
great  importance  in  the  identification  of  the  perpetrator,  either  in 
raising  or  confirming  a  suspicion  against  some  person  as  the  sup- 
posed offender ;  but  these  should  generally  be  connected  with  other 
circumstances ;  yet  a  very  strong  circumstance  arises  in  the  fact  of 
finding  on  the  person  of  the  accused,  articles  belonging  to  the  de- 
ceased, which  are  satisfactorily  identified  —  such  as  his  purse,  pocket- 
book,  watch,  jewelry,  etc.  Equally  strong  is  the  circumstance,  per- 
haps, of  finding  at  or  near  the  scene  of  a  murder,  articles  of  apparel 
belonging  to  the  accused,  such  as  a  pair  of  gloves,  a  handkerchief,  or 
a  hat ;  these,  when  there  is  a  satisfactory  identification  of  them,  will 
at  least  call  for  a  satisfactory  explanation.  But  these,  while  they  are 
sufficiently  strong  to  raise  a  suspicion,  point  to  some  individual  and 
narrow  the  range  of  inquiry,  they  are  by  no  means  conclusive,  since 
cases  of  mistake  have  become  so  frequent.  Experience  and  observa- 
tion have  taught  us  many  valuable  lessons,  in  the  application  of  cir- 
cumstantial evidence,  to  avoid  mistaken  identity.  In  the  case  above 
given,  articles  of  the  deceased  found  in  the  possession  of  the  accused 
may  not  be  the  same  but  similar,  or  he  may  have  borrowed  or 
purchased  them  from  the  deceased,  and  not  be  able  to  show  it.  Or 
in  the  case  of  articles  belonging  to  the  accused,  found  at  or  near  the 
1  Cooper  v.  State,  23  Tex.  331.  s  Mendum  v.  Com.,  6  Rand.  (Va.)  704. 


190  THE  LAW  OF  IDENTIFICATION. 

scene  of  a  murder,  they  may  have  been  stolen,  or  sold,  or  loaned  to 
the  real  murderer  or  even  to  the  accused.  Suppose  a  man  be  found 
dead  with  a  dirk  in  his  side,  which  he  borrowed  from  a  friend  and 
committed  suicide,  and  that  friend  was  the  last  person  seen  in  com  • 
pany  with  him  ;  it  is  called  a  murder,  and  the  circumstances  point 
directly  to  the  owner  of  the  dirk,  and  no  explanation  of  his  can 
create  a  reasonable  doubt  of  his  guilt  in  the  minds  of  the  jury. 

Same  —  circumstances  may  mislead  —  caution. 

§  271.  Circumstances  may  often  have  no  value  except  to  raise  sus- 
picion, which  should  be  confirmed  by  other  facts  or  circumstances. 
A  murderer  may  take  the  property  of  the  deceased  and  dispose  of  it 
to  an  innocent  person,  who  may  never  be  able  to  account  for  his 
possession  thereof ;  the  property  being  identified,  that,  of  itself, 
to  the  unthinking,  may  be  a  satisfactory  identification  of  the  per- 
petrator. Again,  an  assassin  or  robber  may  inflict  a  mortal  wound 
upon  his  victim,  and  leave  him  unconscious  and  in  a  dying  condition 
on  the  highway,  with  a  bloody  knife  by  his  side ;  a  stranger  arrives 
on  the  scene,  and  like  the  "  good  Samaritan  "  attempts  to  lift  him 
from  the  ground ;  in  so  doing  his  clothes  are  blood-stained,  and  he  is 
found  in  the  act  by  others  ;  the  witnesses  who  saw  them  thought  they 
were  struggling  together;  the  innocent  man  is  arrested,  blood  is 
on  his  clothes,  the  knife  is  by  the  side  of  the  corpse,  they  were  seen 
struggling  together.  The  circumstances  point  directly  to  him  and 
none  other.  The  innocent  man  is  liable,  yea,  almost  certain,  in  the 
absence  of  the  intervention  of  some  extraordinary  circumstance,  to 
be  convicted  and  executed,  and  his  death  is  the  result  of  his  charity, 
benevolence  and  humanity  in  the  performance  of  an  act  of  mercy. 
Hence  the  great  necessity  of  caution  in  the  application  of  circum- 
stantial evidence  in  questions  of  identification. 

Again,  an  innocent  man  walking  on  the  highway  is  overtaken  by 
a  man  on  horseback,  who  had  stolen  the  horse  he  was  riding,  and  fear- 
ing  pursuit  by  the  owner  of  the  horse,  induced  the  footman  to  ride  ; 
the  offer  is  thankfully  accepted  ;  the  thief  says,  "  ride  on  about  a  mile, 
tie  the  horse  and  walk  on,  I  will  ride  when  I  come  up,  we  will  ride 
and  tie."  The  offer  was  accepted,  the  pursuers  came,  found  the 
innocent  man  on  the  horse,  and  the  explanation  was  of  no  avail. 
The  guilty  man  left  the  road  and  escaped,  and  the  innocent  must 
suffer.* 

*  As  to  the  detection  of  blood  on  weapons  as  a  means  of  Identification  in  cases  of  murder, 
Mr.  Taylor,  in  his  Med.  Jur.  (8th  Am.  ed.)  p.  300,  says:  "  A  knife,  dagger  or  sword  may  have 


MURDER  —  IDENTIFICATION.  191 

Murder  for  interest  in  an  estate. 

§  272.  A  singular  case  is  given  of  the  trial  of  the  Knapps  for  the 
murder  of  Joseph  White,  for  his  estate,  under  these  brief  circum- 
stances :  White  was  childless  and  was  known  to  have  executed  a  will ; 
his  legal  representatives  were,  Mrs.  Beckford,  his  housekeeper,  the 
only  child  of  a  deceased  sister,  and  four  nephews  and  nieces,  children 
of  a  deceased  brother.  To  Stephen  White,  one  of  the  latter,  he  gave 
the  larger  portion,  and  to  Mrs.  Beckford  a  smaller  portion.  A 
daughter  of  Mrs.  Beckford  married  Joseph  J.  Knapp,  Jr.,  who,  with 
his  brother  Francis,  were  young  shipmasters,  as  also  a  son  of  Joseph. 
Shortly  after  the  murder,  the  father  received  a  letter,  obscurely  in- 
timating that  the  writer  was  possessed  of  a  secret  connected  with  the 
murder,  and  for  the  preservation  of  which  he  demanded  a  "  loan " 
of  $350.  Being  unable  to  comprehend  it,  he  handed  it  to  his  son, 
who  returned  it,  saying  he  might  hand  it  to  the  vigilance  committee 
appointed  on  the  subject,  which  he  did,  and  this  led  to  the  arrest  of 
Charles  Grant,  who  had  been  an  associate  of  R.  Crownin shield,  Jr., 
and  George  Crowninshield,  and  had  spent  part  of  the  winter  at  Dan- 
vers  under  the  name  of  Carr,  and  had  been  their  guest,  concealed  in 
their  father's  house.  On  April  2  he  saw  from  the  window  Frank 
Knapp  and  young  Allen  ride  up  to  the  house ;  George  walked  away 
with  Frank  and  Richard  with  Allen ;  and  on  their  return,  George  told 
Richard  that  Frank  wished  them  to  undertake  to  kill  Mr.  White, 
and  that  J.  J.  Knapp,  Jr.,  would  pay  a  thousand  dollars  for  the  job. 

been  used  for  inflicting  a  wound,  and  may  have  no  stains  of  blood  upon  it,  or  only  a  slight  yel- 
lowish film  or  dried  serum.  It  may  in  fact  have  been  wiped  by  drawing  it  through  the  wound 
or  clothing.  In  other  cases  the  weapon  may  have  well-marked  stains  upon  it,  and  when  these 
are  recent,  and  on  a  clean  or  polished  surface,  they  may  be  easily  recognized;  but  when  of  old 
standing,  or  on  a  rusty  piece  of  metal ,  it  is  a  matter  of  some  difficulty  to  distinguish  them  from 
stains  produced  by  rust  or  other  causes .  If  the  stain  is  large  and  dry,  a  portion  may  be  scraped 
off  and  placed  in  a  watch  glass  with  some  distilled  water —  the  solution  filtered  to  separate  any 
oxide  of  iron,  and  then  tested .  If  the  water  by  simple  maceration  does  not  acquire  a  red  or 
red-brown  color,  the  stain  is  not  probably  due  to  blood.  If  it  acquire  a  red  color  the  solution 
may  be  tested,"  etc.  The  same  author,  at  page  2%,  in  speaking  of  stains  of  blood  on  linen  and 
other  stuffs,  their  age  or  date,  says:  "  Supposing  the  stuff  to  be  white,  or  nearly  colorless,  the 
spot  of  blood,  if  recent,  is  of  a  bright  red  color;  but  by  exposure  it  sooner  or  later  becomes  of  a 
reddish-brown,  or  of  a  deep  red  color.  This  change  of  color  to  a  reddish-brown,  I  have  found 
to  take  place  in  warm  weather  in  less  than  twenty-four  hours.  After  a  period  of  five  or  six 
days,  it  is  scarcely  possible  to  determine,  from  the  appearance,  the  date  of  the  stain,  even  con- 
jecturally.  In  a  large  stain  of  blood  on  linen,  no  change  took  place  in  a  period  of  five  years;  it 
had  a  reddish-brown  color  at  the  end  of  six  weeks,  which  it  retained  for  the  long  period  men- 
tioned. Indeed  it  is  extremely  difficult  in  any  case  after  the  lapse  of  a  week  to  give  an  opinion 
as  to  the  actual  date  of  the  stain.  Upon  colored  stuff  or  dirty  clothes,  it  is,  of  course,  impossible 
to  trace  the  physical  change  in  stains  of  blood.  On  red-dyed  stuff  the  stain  appears  simply 
darker  from  the  first,  and  in  all  cases  the  fibre  of  the  stuff  is  more  or  less  stiffened,  as  a  result 
of  the  drying  of  the  albumen  associated  with  the  red  coloring  matter.  In  examining  the  article 
of  clothing,  attention  should  be  paid  to  the  side  of  the  stuff  which  has  first  received  the  stain. 
Sometimes  both  sides  are  stained.1" 


192  THE  LAW  OF  IDENTIFICATION. 

They  proposed  various  modes  of  doing  it,  and  asked  Grant  to  be  con- 
cerned, which  he  declined.  George  said  the  housekeeper  would  be 
away  all  the  time ;  that  the  object  of  Joseph  J.  Knapp,  Jr.,  was  first  to 
destroy  the  will,  and  that  he  could  get  the  keys  of  the  iron  chest  from 
the  housekeeper.  Frank  called  the  same  day  in  a  chaise  and  rode 
away  with  Kichard,  and  on  the  night  of  the  murder,  Grant  stayed 
at  the  half-way  house  in  Linn.  In  the  meantime  suspicion  was 
greatly  strengthened  by  Joseph  J.  Knapp,  Jr.,  writing  a  pseudony- 
mous letter  to  the  vigilance  committee,  trying  to  throw  the  suspicion 
on  Stephen  White,  and  Richard  and  George  Crowninshield  and 
Joseph  and  John  Knapp  were  arrested  for  the  murder.  Richard 
Crowninshield  tried  to  get  Grant  not  to  testify  against  him  ;  failing 
in  this,  he  committed  suicide,  and  the  two  Knapps  were  convicted. 
Their  motive  was  to  destroy  the  will,  kill  White,  have  him  die  in- 
testate, and  thereby  increase  the  interest  of  Mrs.  JBeckford  in  the 
estate,  but  it  did  not  have  that  effect,  they  were  mistaken  as  to  the  law, 
and  she  took  less  than  she  would  have  received  under  the  will.1 

Murder  —  indications  a  violent  death  —  identity. 

§  273.  In  making  proof  of  the  corpus  delicti  in  a  murder  case,  as 
suggested  by  an  eminent  writer,  the  state  of  the  clothing,  if  torn, 
cut,  or  otherwise  disordered,  or  stripped  in  apparent  haste,  or  at- 
tempted to  be  put  on  again  in  an  unusual  manner,  or  if  the  pockets 
are  found  rifled,  or  the  like,  goes  to  indicate  a  violent  death.  Stains 
of  blood  or  other  substances,  and  marks  or  incisions  or  perforations 
near  the  wounds,  or  corresponding  with  them  in  size,  shape  and  di- 
rection, serve  a  similar  purpose,  and  require  to  be  accurately  ob- 
served. The  condition  of  the  ground  in  the  immediate  vicinity  of 
the  dead  body,  where  it  is  found  in  the  open  air,  as  disturbed  in  any 
manner,  or  bearing  impressions  of  any  kind,  marks  of  struggles,  and 
of  dragging  the  body,  indicate  the  violent  agency  of  another  as  the 
cause  of  the  death.  Footprints  conclusively  show  the  presence  of 
others,  and  their  number,  their  character  and  direction  are  always  to 
be  carefully  attended  to.  *  *  *  Weapons  or  other  means  of 
taking  life,  whether  found  in  immediate  contact  with  the  body,  or 
in  its  vicinity.  The  most  minute  circumstances  connected  with  ob- 
jects of  this  kind  require  close  attention  and  examination  ;  such  as 
the  distance  at  which  the  weapon  is  found,  the  direction  in  which  it 
lies,  and  its  relative  position  to  the  body,  its  condition,  whether 
'  Whart.  Cr.  Ev.  (8th  ed.)  §  704,  n. 


MUKDEK  —  IDENTIFICATION.  193 

"bloody  or  otherwise,  and  whether  sheathed  or  closed.  If  poison,  the 
state  of  the  phial  containing  or  having  contained  it,  whether  corked 
or  otherwise.  The  absence  of  all  weapons  or  means  of  destroying 
life  serve  to  negative  the  supposition  of  an  accidental  or  a  suicidal 
death.  On  the  trial  of  one  Sturtivant  for  murder,  the  evidence 
showed  that  scrip  of  a  particular  issue,  not  then  in  circulation,  was 
found  the  day  after  the  murder,  in  the  house  of  the  deceased,  and 
that  the  prisoner  passed  similar  scrip  on  the  same  day.  The  witness 
was  asked  to  describe  the  scrip.  This  was  objected  to  upon  the 
ground  that  the  scrip  should  be  produced.  The  prosecuting  attorney 
stated  that  the  scrip  would  be  produced.  It  was  held  that  it  was 
proper  to  permit  the  witness  to  describe  it  for  the  purpose  of  identi- 
fying the  scrip  when  it  should  be  produced.1 

Corpus  delicti  —  identification  of  the  dead . 

§  274.  The  identification  of  the  deceased  need  not  in  all  cases  be 
proved  by  witnesses  who  recognized  the  body  by  an  inspection  to  be 
that  of  the  person  alleged  to  have  been  killed ;  the  identification  may 
be  established  in  the  same  manner  and  by  evidence  of  the  same  nature, 
as  is  admissible  to  identify  the  accused,  or  to  prove  any  other  fact  in 
the  case.  In  a  Texas  case  in  1871,  it  was  held  that  evidence  of  this 
character  was  admissible  and  might  conclusively  establish  the  iden- 
tification beyond  a  reasonable  doubt.  The  deceased  was  identified 
by  his  clothing,  by  a  wagon  and  team,  and  by  papers  which  were 
found  on  his  person,  when  the  body  was  found,  though  no  witness 
who  knew  him  while  living  could  swear  that  the  body  found  was  the 
corpse  of  the  alleged  deceased.2  But  where  there  is  no  proof  of  the 
corpus  delicti,  except  an  uncorroborated  extra-judicial  confession,  a 
conviction  of  murder  is  impossible.3 

Same  —  death  by  poisoning  —  experts  —  conflict. 

§  275.  The  corpus  delicti  is  said  to  consist  of  two  parts,  or  facts — 
the  death  of  the  alleged  victim,  and  the  existence  of  a  criminal  agency 
in  producing  it.  The  former  must  be  established  by  direct  evi- 
dence, as  held  by  some  courts,  or  by  the  strongest  presumptive  evi- 
dence, while  the  latter  may  be  shown  by  circumstantial  evidence. 
"Where  a  person  in  general  good  health  dies  suddenly,  and  the  symp- 
toms indicate  narcotic  poison  of  Jamestown  weed  or  stramonium, 
but  are  similar  also  to  symptoms  common  to  disease  of  the  heart,  or 

1  Com.  v.  Sturtivant,  117  Mass.  123.         3  State  v.  German,  54  Mo.  526. 

2  Taylor  v.  State,  35  Tex.  97. 

25 


194  THE  LAW  OF  IDENTIFICATION. 

congestion  of  the  brain  or  stomach,  and  the  testimony  of  medical 
experts,  who  made  an  examination  of  the  stomach  and  its'  contents, 
without  analysis,  conflict,  and  leave  a  doubt,  with  the  probabilities 
equally  balanced,  whether  the  death  resulted  from  poison  or  disease  — 
it  was  held  that  such  facts,  though  accompanied  by  a  confession  of 
the  accused  that  he  had  administered  Jamestown  weed,  were  not 
sufficient  to  warrant  the  jury  in  finding  a  verdict  of  guilty.1  Where 
medical  experts  differ  as  to  the  cause  of  death,  the  jury  may  well 
doubt. 

Identity  of  deceased  —  opinion  evidence. 

§  276.  One  "Wilson  was  indicted  in  New  York  for  murder,  and 
the  principal  question  on  the  trial  was  the  identity  of  the  deceased. 
A  brother-in-law  of  the  alleged  deceased,  as  a  witness  for  the  prose- 
cution, testified  to  having  seen  and  examined  the  body  about  five 
months  after  the  date  of  the  alleged  murder,  and  mentioned  specifi- 
cally several  points  of  resemblance  ;  he  was  then  asked  by  the  prose- 
cuting attorney  for  his  opinion  as  to  whether  it  was  the  body 
of  his  brother-in-law,  who  was  alleged  to  have  been  killed,  and 
he  was  permitted  to  give  his  opinion.  On  appeal  to  the  Su- 
preme Court,  it  was  held  that  the  opinion  of  the  witness  could  not 
be  taken  in  the  case,  he  not  being  an  expert,  and  it  being  the  prov- 
ince of  the  jury  to  decide  upon  the  identity  from  the  facts  detailed 
by  the  evidence,  the  body  being  much  decomposed,  and  so  much 
changed  in  appearance.2  But  we  find  many  later  cases  holding  a 
different  rule  ;  in  fact  identification  is  generally  established,  either 
by  circumstantial  evidence  or  by  opinion  evidence,  but  the  witnesses 
should  state  the  facts  upon  which  their  opinions  are  based,  as  we  see 
it  generally  held.3  It  is  true  that  the  general  rule  did  not  permit 
non-experts  to  give  their  opinions  to  the  jury,  but  it  is  now  a  well- 
recognized  exception  to  that  rule,  that  it  is  permitted  in  questions 
of  identity ;  in  fact  this  exception  is  now  as  well  recognized  as  the 
rule  itself.4 

Footprints  establishing  the  fact  of  murder. 

§  277.  In  the  trial  of  an  indictment  for  murder  in  Mississippi  in 
1849,  the  defendant,  one  Cicely,  a  slave,  and  others,  charged 

1  Pitts  v.  State,  43  Miss.  472.  355;    Brink    v.    Ins.   Co.,   49   Vt.    442; 

5  People  v.  Wilson.  8  Park.   Cr.  206.  Cooper  v.  State,  23  Tex.  339. 

JCom.   v.  Pope,  103  Mass.  440;  Com.  4  Kearney   v.   Farrell,    28  Conn.  317; 

v.  Dorsey,  id.  412;  Com.  v.  Sturtivaut,  Bennett  v.  Meekan,  83  Ind.  569. 
117  id.  132;   M'Kee  v.  Nelson,  4  Cow. 


MUEDEE  —  IDENTIFICATION.  195 

•with  the  murder  of  her  mistress,  Mrs.  Longon,  wife  of  Dr.  Longon. 
The  evidence  was  circumstantial,  and  much  depended  upon  the  foot- 
prints found  in  and  about  the  scene  of  the  murder.  There  was 
much  testimony.  One  Johnson,  for  the  defense,  testified,  that  he 
examined  the  bloody  footprints  on  the  floor  of  Dr.  Longon's  house, 
and  said  they  resembled  a  stocking  footprint,  as  the  toes  were  not 
distinctly  marked.  She  was  convicted  in  the  court  below,  and  it 
was  affirmed  by  the  Supreme  Court  on  writ  of  error.1* 
1  Cicely  v.  State,  13  S.  &  M.  (Miss.)  202-219. 

*In  Cicely  v.  State,  supra,  after  examining  the  facts  of  the  case,  SMITH,  J.,  said:  "  From  this 
statement  of  the  testimony,  the  facts  which  militate  against  the  accused,  and  lead  to  conclusions 
of  her  guilt,  are:  1.  Her  presence  at  the  commission  of  the  homicide,  and  the  perfect  means 
which  were  at  her  command  for  the  accomplishment  of  her  object.  2.  The  fact  that  from  the  door 
of  the  nouse,  in  the  walk,  to  the  spot  where  the  corpse  of  Mrs.  Longon  was  found,  during  the 
nij?ht,  after  cautious  and  careful  examination,  there  were  discovered  but  two  sets  of  tracks  or 
'footprints,'  one  of  which  was  supposed  to  be  those  of  the  deceased,  and  the  other  corre- 
sponded with  those  of  the  accused.  3.  The  fact  that  at  the  place  where  the  homicide  was  com- 
mitted the  traces  of  a  scuffle  were  visible,  and  the  prints  of  feet  were  discovered,  which  corre- 
sponded with  the  tracks  of  the  accused.  4.  The  fact  that  from  the  point  at  which  the  corpse 
was  found  to  the  gate,  there  was  found  but  one  set  of  tracks  and  they  corresponded  with  those 
of  the  accused.  5.  The  prisoner's  declining  to  advance  into  the  light  at  Brown's,  where  the  wit- 
ness Perry  was  standing  with  others,  and  her  retreat  into  a  dark  corner.  6.  The  statement 
prisoner  mads  to  witness  James  E .  Watts,  in  the  jroad  between  Longon's  and  Brown's,  before 
any  suspicion  of  her  agency  in  the  matter  had  arisen  hi  the  mind  of  the  witness.  She  stated 
that  after  the  robbers  had  killed  Longon  and  his  family,  Mrs.  Longon  and  herself  ran  out  of  the 
house  and  were  pursued  by  the  robbers,  who  overtook  Mrs.  Longon  and  killed  her  where  she 
lay;  but  that  she  outran  Mrs.  Longon  and  escaped  and  ran  over  to  Brown's.  7.  The  stains  of 
blood  on  the  front  of  her  dress.  Witness  says:  'There  was  many  specks  or  spots  on  it.' 
8.  The  blood-stains  on  the  pantaloon  pocket  of  Longon,  coupled  with  her  possession  of  his 
purse,  secreted,  and  her  ignorance  of  the  amount  of  its  contents.  9.  The  improbable  version  she 
gave  of  the  whole  transaction  and  her  palpable  contradictory  statements.  The  question  which 
naturally  presents  itself  is:  Can  all  the  facts  distinctly  proven  stand,  and  yet  the  prisoner  be 
guiltless  of  the  homicide?  It  is,  in  the  first  place,  insisted  that  the  presence  of  the  prisoner, 
who  would  necessarily  have  been  there,  whether  guilty  or  innocent,  creates  no  presumption  of 
her  guilt;  and  that  the  absence  of  any  sufficient  motive  for  the  commission  of  so  dreadful  a 
crime  is  a  circumstance  strongly  in  her  favor.  It  is  difficult  to  estimate  the  force  of  any  motive 
which  may  arise  in  any  given  case.  We  have  evidence,  from  painful  experience,  that  a  desire 
to  possess  the  wealth  of  another  has  often  constituted  the  operative  motive  for  the  perpetration 
of  the  deepest  crimes.  The  prisoner  may  have  been  ignorant  of  the  amount  of  money  which 
Longon  possessed,  or  the  glittering  contents  of  the  puree  may  have  presented  a  temptation 
which  she  did  not  resist.  We  are  forced  to  infer  that  the  acquisition  of  the  purse,  with  the  at- 
tendant circumstances,  formed  at  least  a  part  of  her  motive.  Again,  it  is  urged  that  the  exist- 
ence of  the  footprints  in  the  walk  from  the  door  to  the  point  where  the  dead  body  was  found, 
and  from  thence  to  the  gate,  is  in  harmony  with  the  prisoner's  statement,  and  must  have  ex- 
isted if  her  statement  were  true.  This  assumption  is  directly  rebutted  by  the  facts.  If  Mrs. 
Longon  was  slain  by  the  robbers,  who  rushed  from  the  house  in  pursuit  of  the  fugitives,  there 
must  have  been  other  tracks  made  in  the  walk  besides  those  of  the  two  persons  in  the  flight; 
and  the  place  where  the  blow  was  struck  and  the  victim  fell,  which  bore  evidence  of  a  scuffle, 
would  also  have  been  eloquent  of  the  presence  of  the  murderers.  It  is  again  insisted  that  the 
stains  of  blood  upon  her  dress,  as  that  circumstance  may  be  accounted  for  in  various  ways  con- 
sistent with  the  innocence  of  the  accused,  creates  no  presumption  of  her  guilt.  Her  own  ex- 
planations are  unsatisfactory  and  untrue.  It  did  not  proceed  from  the  old  wound  on  her  finger, 
as  she  first  stated  and  afterward  denied,  etc.  Her  counsel  asked  this  instruction:  '  If  the 
jury,  after  weighing  the  evidence,  have  a  reasonable  doubt  that  the  prisoner  is  guilty  they  are 
bound  by  law  to  find  her  not  guilty."  The  judge  gave  it  with  this  addition:  'To  warrant  the 
jury  in  finding  the  prisoner  guilty,  there  should  be  evidence  before  them  sufficient  to  satisfy 


196  THE  LAW  OF  IDENTIFICATION. 

Footprints  as  evidence  of  identification. 

§  278.  Mr.  Burrill  in  his  valuable  work  on  Circumstantial  Evi- 
dence, has  wisely  condensed  the  rule  as  to  footprints  as  a  means  of 
identity,  thus  :  "  Impressions  directly  from  the  person ;  such  as 
prints,  in  earth  or  snow,  of  the  feet  or  shoes,  and  impressions  of 
other  parts  of  the  body.  Of  these  (especially  in  cases  of  crime  com- 
mitted in  rural  districts),  footprints  are  the  most  common.  They 
are  among  the  first  indications  observed  after  the  discovery  of  a 
crime,  and,  indeed,  are  naturally  sought  for,  as  furnishing  an  im- 
portant clue  to  the  discovery  of  the  criminal,  and  a  means  of  satis- 
factory identification  of  his  person  ;  much  of  their  value  consists  in 
the  circumstance  that  they  are  usually  made  and  left  (especially 
where  a  crime  has  been  committed  at  night),  unconsciously  and  in- 
advertently, the  attention  of  the  criminal  being  engrossed  by  the 
perpetration  of  the  crime  itself.  They  may  be  considered  of  two 
kinds  :  Ordinary  footprints,  exhibiting  no  peculiar  characteristics  ; 
and  impressions  of  a  peculiar  character.  The  former  are  important, 
first,  as  showing  the  general  fact  that  one  or  more  persons  have  been 
present ;  secondly,  as  indicating  the  direction  from  which  they  ap- 
proached, or  in  which  they  left  the  scene  of  the  crime,  and  their  move- 
ments about  it ;  and,  thirdly,  as  more  immediately  indicating  the 
particular  perpetrator  by  inferences  which  they  tend  to  establish.1 
In  the  English  case  of  Mrs.  Arden  and  others,  who  were  convicted 
of  the  murder  of  her  husband  at  Feversham,  in  England,  A.  D. 
1551,2  the  crime  was  committed  in  the  house  of  the  deceased,  and 
the  dead  body  was  carried  out  the  same  evening,  through  the  garden, 
into  an  adjoining  field,  where  it  was  laid  on  the  ground.  Snow 
having  fallen  in  the  meantime,  impressions  of  the  murderers'  foot- 
prints were  left  upon  it,  by  which  they  were  traced  from  the  body 
to  the  house,  where  new  indications  of  guilt  were  discovered.  The 
crime  was  effectually  brought  home  to  them. 

Footprints  —  tracks  —  murder  —  rule  of  evidence. 

§  279.  The  tracks  of  the  perpetrator  of  crime  often  lead  to  other 
facts  which  prove  the  most  satisfactory  identification.     Mr.  Burrill 
1  Burrill  Cir.  Ev.  264.  2  5  London  Legal  Observer,  59. 

their  minds  of  her  guilt,  beyond  a  reasonable  doubt;  that  which  amounts  to  mere  probability 
only,  or  to  conjecture  or  supposition,  is  not  what  is  meant  by  a  reasonable  doubt.  The  doubt 
which  should  properly  induce  a  jury  to  withhold  a  verdict  of  guilty  should  be  such  a  doubt  as 
would  reasonably  arise  from  the  evidence;  and  if  such  a  reasonable  doubt  should  arise  from  the 
evidence,  the  prisoner  is  entitled  to  the  benefit  of  that  doubt.'  Held  to  be  correct.  It  may  be 
noted,  that  in  this  case  the  prisoner  was  made  to  put  her  foot  in  the  track;  compelled  to  do  so 
by  a  witness,  and  his  evidence  of  the  fact  was  received." 


MURDER  —  IDENTIFICATION.  197 

gives  a  case  of  this  description  substantially  as  occurring  in  Scotland 
in  1786.  One  Richardson  was  convicted  for  the  murder  of  a  young 
woman,  who  resided  with  her  parents  in  a  rural  district.  Her  parents 
returned  from  the  harvest  field  at  noon  and  found  her  a  corpse,  with 
her  throat  cut,  as  it  appeared,  with  some  sharp  instrument,  evidently 
in  the  left  hand  of  the  perpetrator  of  the  crime,  and  she  was  found 
to  be  pregnant.  There  were  footprints  near  the  cottage,  seemingly 
of  a  person  who  had  been  running  from  the  cottage  and,  by  an  in- 
direct road,  through  a  quagmire  or  ~bog,  and  slipped  his  foot  into  the 
mire ;  the  tracks  were  accurately  measured  and  an  exact  impression 
taken.  The  shoes  worn  had  been  "  newly  mended,"  and  had  iron 
knobs  or  nails  in  them.  Along  the  tracks  or  footsteps,  at  intervals, 
there  were  drops  of  blood,  and  on  the  gateway  near  the  cottage. 
But  no  one  was  yet  suspected.  A  number  of  persons  attended  the 
funeral ;  and  the  steward  —  deputed  to  obtain  a  clue  to  the  murderer 
—  called  the  men  together,  about  sixty,  and  had  their  shoes  measured. 
Richardson  being  present,  it  was  found  that  his  shoes  corresponded 
exactly  with  the  impression,  in  size,  shape  of  the  foot,  form  of  the 
sole,  newly  mended,  and  the  number  and  position  of  the  nails.  He 
was  shown  to  be  left  handed.  It  appeared  that  he  had  been  absent 
from  his  work  on  the  forenoon  of  the  day  of  the  murder  a  sufficient 
time  to  go  to  the  cottage  and  return ;  and  one  of  his  stockings  worn 
on  that  day  was  soiled  with  mud  like  that  in  the  bogs.  A  young 
girl,  who  was  about  a  hundred  yards  distant  from  the  cottage,  said 
about  the  time  the  murder  was  supposed  to  have  been  committed, 
she  saw  a  man,  exactly  with  dress  and  appearance  like  defendant, 
running  hastily  toward  the  cottage,  and  this  corresponded  with  the 
time  he  was  absent  from  his  work.  He  was  convicted  and  executed, 
confessed  his  guilt,  and  said  he  did  it  to  hide  his  shame,  he  being  the 
father  of  her  unborn  child.  He  informed  the  clergyman  where  the 
knife  would  be  found  with  which  he  committed  the  horrid  deed. 
Thus,  the  tracks  of  the  murderer  limited  the  inquiry,  suspicion  fell 
upon  him  and  led  to  facts  and  circumstances  which  brought  the  guilty 
to  punishment.1  And  yet,  too  much  caution  cannot  be  used  in  the 
application  of  circumstances  to  prove  a  satisfactory  identification. 

Impression  made  by  clothing. 

§  280.  A  singular  fact  as  evidence  of  identification  is  given  by 
Mr.  Burrill  thus :  "  In  the  case  of  Rex  v.  Brindley,  impressions  were 
'Burrill  Cir.  Ev.  343.     Citing  Burnett  Cr.  Law  of  Scotland,  534  et  seq. 


198  THE  LAW  OF  IDENTIFICATION. 

found  in  the  soil,  near  the  scene  of  the  crime,  which  was  stiff  and 
retentive,  of  the  knee  of  a  man  who  had  worn  breeches  made  of  striped 
corduroy,  and  patched  with  the  same  material,  but  the  patch  was  not 
set  on  straight ;  and  the  ribs  of  the  patch  meeting  the  hollow  of  the 
garment  into  which  it  had  been  inserted,  which  circumstance  exactly 
corresponded  with  the  dress  of  the  prisoner.1  Mr.  Best  very  wisely 
remarks,  that  being  left-handed  or  having  lost  front  teeth  are  not 
very  uncommon  occurrences.2  The  value  of  these  marks  consist  in 
their  narrowing  the  range  of  inquiry,  by  excluding  all  persons  not  pos- 
sessing them.  Many  objects  at  or  near  the  scene  of  a  crime  may 
serve  as  a  means  of  identifying  the  perpetrator,  when  they  correspond 
with  other  objects  found  in  the  possession  of  the  supposed  offender. 
A  bullet  extracted  from  the  body  of  the  deceased,  fitting  the  barrel 
of  a  pistol,  or  a  bullet  mould  found  on  the  person  of  the  defendant ; 
patches  and  tow-wadding  found  near  the  body  of  the  deceased,  cor- 
responding with  those  found  in  the  possession  of  the  accused.  These 
are  familiar  instances.3 

Firearms  —  proximity  —  direction  —  rule  as  to. 

§  281.  Where  the  wound  which  resulted  in  death  indicates  that 
the  firearm  causing  it  was  in  close  proximity  to  the  person  of  the 
deceased,  or  the  direction  of  the  wounds  left  by  the  ball  shows  it  to 
have  entered  in  front,  in  the  rear,  or  at  the  side,  or  from  a  higher  or 
lower  point,  this  will  be  a  satisfactory  indication  of  the  relative  posi- 
tion of  the  party  firing.4  Wounds  inflicted  by  the  deceased  upon 
the  person  of  the  accused,  in  the  course  of  resistance  or  in  self-defense, 
in  a  particular  manner  or  with  a  particular  instrument ;  as  in  the  case 
of  a  robbery,  the  prosecutor  struck  the  robber  in  the  face  with  a  key ; 
and  a  mark  of  a  key  corresponding  was  visible  on  the  face  of  the  ac- 
cused, and  this  went  far  to  identify  him.* 

Infanticide  —  birth  —  death  —  what  amounts  to. 

§  282.  In  all  cases  of  killing,  whether  it  be  homicide  or  infanticide, 
the  general  rule  is,  that  the  death  of  the  alleged  deceased  must  be 
proven  (though  there  are  some  exceptions  to  this  general  rule).  In  an 
English  case  decided  in  1834,  the  prisoner,  Eliza  Brain,  was  indicted 
for  the  murder  of  her  male  bastard  child.  It  appeared  that  the  prisoner 
had  been  delivered  of  a  child  at  Sandford  ferry,  and  that  the  body  of 

1  Burrill  Cir.  Ev.  269.  4  McCann   v.  State,  18  S.  &  M.  (Miss.) 

'Best  Presumption,  §  218.  471.  482,  494. 

*  Burrill  Cir.  Ev.  272.  6  Best  Presumption,  §  218. 


MURDKK  —  IDENTIFICATION.  199 

the  child  was  afterward  found  in  the  water,  about  fifteen  feet  from 
the  lock-gate,  near  the  ferry-house ;  but  it  was  proved  by  two  sur- 
geons, Mr.  Box  and  Mr.  Hester,  that  the  child  had  never  breathed. 
In  summing  up,  PARK,  J.,  said :  "  A  child  must  be  actually  wholly  in 
the  world  in  a  living  state  to  be  the  subject  of  a  charge  of  murder ; 
but  if  it  has  been  wholly  born,  and  is  alive,  it  is  not  essential  that  it 
should  have  breathed  at  the  time  it  was  killed,  as  many  children 
are  born  alive,  and  yet  do  not  breathe  for  some  time  after  birth. 
But  you  must  be  satisfied  that  the  child  was  wholly  born  into  the 
world  at  the  time  it  was  killed,  or  you  ought  not  to  find  the  prisoner 
guilty  of  murder.  This  is  not  only  my  opinion,  but  the  law  was  laid 
down  in  a  case  as  strong  as  this,  by  a  very  learned  judge  (Mr.  Jus- 
tice LITTLEDALE),  at  the  Old  Bailey."1  The  weight  of  authority  now 
seems  to  be,  in  cases  of  alleged  infanticide,  that  it  must  be  shown 
that  the  child  had  acquired  an  independent  circulation  and  existence  j 
and  that  it  had  breathed  in  course  of  birth  is  not  sufficient. 

Of  the  deceased  —  identity  —  confession. 

§  283.  In  all  trials  for  murder,  the  corpus  delicti  must  be  proved 
beyond  a  reasonable  doubt,  as  it  has  been  said  "  where  there  is  no 
proof  of  the  corpus  delicti,  except  on  uncorroborated  extra-judicial 
confession,  a  conviction  of  murder  is  impossible."  And  the  corpus 
delicti  is  said  to  be  in  two  parts :  1.  The  death  of  the  alleged  de- 
ceased person ;  and  2.  The  criminal  agency  in  effecting  the  death. 
And  the  proof  of  both  must  be  made  out ;  hence  the  necessity  of 
identifying  the  victim  and  the  accused.  In  a  Missouri  case,  decided 
in  1874,  one  German  was  indicted  for  the  murder  of  Canaday.  On 
the  first  trial  he  was  convicted  of  the  offense,  and  on  the  second  trial 
there  was  a  verdict  of  murder  in  the  second  degree,  and  that  was  re- 
versed upon  the  rule  above  stated.  The  defendant  and  Canaday 
lived  together,  Canaday  having  married  German's  wife's  mother. 
On  the  day  Canaday  disappeared,  the  two  started  together  in  a 
wagon,  to  work  in  a  corn-field  about  two  miles  distant.  Defendant 
returned  alone  in  the  evening.  "When  asked  where  Canaday  was,  he 
said  :  "  A  couple  of  men  came  along  where  they  were  at  work,  and 
gave  the  old  man  a  drink  of  whisky,  and  he  went  off  with  them." 
And  he  uniformly  told  the  same  story.  After  a  few  months,  the 
woods  between  their  house  and  the  field  was  searched,  a  pair  of  old 
boots,  some  clothing  and  bones  were  found,  but  no  one  could  iden- 

*  Reg.  v.  Dredge,  1  Cox,  235.  And  see  Rex  v.  Brain.  6  Carr.  &  Payne,  349; 
Bex  v.  Enoch,  5  id.  539. 


200  THE  LAW  OF  IDENTIFICATION. 

tify  either.  Eight  months  thereafter,  defendant  removed  to  Kansas, 
forty  miles  distant,  where  he  was  subsequently  arrested.  He  stated 
to  an  officer  while  under  arrest,  and  as  the  officer  said  "  completely 
broke,"  that  he  was  guilty.  This  confession,  uncorroborated  by 
proof  of  the  corpus  delicti,  was  held  insufficient.1  In  this  case,  the 
court,  WAGNER,  J.,  quotes  from  Lord  HALE,  as  follows :  "  I  would 
never  convict  any  person  for  stealing  the  goods  of  a  person  un- 
known, merely  because  he  would  not  give  an  account  how  he  came 
by  them,  unless  there  was  due  proof  made  that  a  felony  had  been 
committed.  I  would  never  convict  any  person  of  murder  or  man- 
slaughter, unless  the  fact  was  proved  to  be  done,  or  at  least  the  body 
found  dead."2  The  court  also  refers  to  another  author,  who  says : 
"  It  may  be  doubted  whether  justice  and  policy  ever  sanction  a  con- 
viction where  there  is  no  other  proof  of  the  corpus  delicti  than  the 
uncorroborated  confession  of  the  party."3 

Corpus  delicti  —  how  it  may  be  proved. 

§  284.  While  the  cwpus  delicti  must  be  proved,  in  every  case  of 
murder,  to  the  satisfaction  of  the  jury,  beyond  a  reasonable  doubt, 
it  does  not  follow  that  the  proof  shall  be  direct  and  positive;  identi- 
fication of  the  deceased  need  not  be  by  witnesses  \vho  recognize  the 
body,  from  an  inspection  thereof,  as  that  of  the  person  alleged  to 
have  been  killed.  A  certain  nature  and  degree  of  proof  is  required 
to  identify  the  accused  with  the  person  charged  in  the  indictment, 
and  the  proof  of  the  identity  of  the  deceased  may  be  of  the  same 
nature  and  degree.  But  the  best  evidence  possible  must  be  given. 
In  a  Texas  case,  decided  in  1872,  Taylor  was  indicted  for  the  mur- 
der of  Evans.  The  question  of  identity  was  all  important.  OGDEN, 
J.,  said  :  "  In  the  case  at  bar  there  was  no  direct  and  positive  proof 
of  the  identity  of  the  body  found  as  the  body  of  Morgan  Evans,  by 
any  person  who  knew  the  deceased  during  his  life,  and  saw  the  body 
after  his  death.  But  there  was  proof  of  a  minute  description  of  the 
body  after  death,  and  the  father,  who  listened  to  the  testimony,  rec- 
ognized it  as  a  description  of  the  body  of  his  son.  Both  father  and 
brother  recognized  the  clothing,  hat  and  other  articles  found  on  or 
near  the  dead  body.  There  were  papers  found  on  the  person  of  the 
deceased,  which  had  been  given  to  a  man  calling  himself  M.  Evans, 
but  a  short  time  before  his  death.  The  wagon  and  team  found  in 
the  possession  of  the  defendant,  and  some  portion  of  the  loading;  of 

1  State  v.  German,  54  Mo.  536.  3  Wills  Cir.  Ev.,  §  6. 

*  1  Whart.  Cr.  L.,  §§  745-46. 


MURDER  —  IDENTIFICATION.  201 

the  wagon  were  proven  to  have  been  Evans'  a  short  time  before  his 
death ;  and  even  the  dog  on  the  premises  of  defendant  was  proven 
to  have  belonged  to  M.  Evans.  These  circumstances  were  held  suf- 
ficient to  identify  the  deceased.1  In  a  trial  for  murder  in  Virginia, 
decided  by  the  Court  of  Appeals  in  1871,  the  court  said :  "  Whatever 
may  be  the  circumstances  of  strong  suspicion  against  the  accused,  it 
would  be  dangerous  to  the  last  degree  to  convict  a  person  of  a  capi- 
tal offense  unless  the  party  charged  with  having  been  murdered  is 
proved  to  be  actually  dead,  either  by  the  finding  and  identification 
of  the  body,  or  by  proof  of  such  criminal  violence  as  would  likely 
produce  death,  and  exerted  in  such  manner  as  to  account  for  the 
disappearance  of  the  body.2  This  general  rule  on  the  subject  of 
identification  of  the  dead  is  also  held  by  the  courts  of  New  York.3* 

1  Taylor  v.  State,  35  Tex.  98,  112.  3  Ruloff  v.  People,  18  N.  Y.  179;  Peo- 

2  Smith  v.  Com.,  21  Gratt.  809-819.      pie  v.  Bennett,  49  id.  137. 

*Mr.  Archbold  in  his  Grim.  Pr.  and  PI.,  at  page  728,  note,  says:  "  The  corpus  delicti,  that  a 
murder  has  been  committed  by  some  one,  is  essentially  necessary  to  be  proved,  and  Lord  HALE 
advises  that  in  no  case  should  a  prisoner  be  convicted,  where  the  dead  body  has  not  been  found 
—  where  the  fact  of  murder  depends  upon  the  fact  of  disappearance.  Although  this  re- 
mark of  Lord  HALE  has  often  been  quoted,  yet  it  has  not  been  generally  regarded  as  authority, 
but  at  most  as  merely  ad  visory.  Mr.  Russell,  in  his  work  on  Crimes,  after  quoting  the  language 
of  Lord  HALE,  says :  '  But  this  rule,  it  seems,  must  be  taken  with  some  qualification;  and  cir- 
cumstances may  be  sufficiently  strong  to  show  the  fact  of  murder  though  the  body  has  never 
been  found.'  Mr.  Starkie,  in  his  work  on  Evidence,  remarks:  '  It  has  been  laid  down  by  Lord 
HALE,  as  a  rule  of  prudence  in  cases  of  murder,  that  to  warrant  a  conviction  proof  should  be 
given  of  the  death,  by  evidence  of  the  fact,  or  the  actual  finding  of  the  dead  body.  But,  al- 
though it  be  true  that  no  conviction  ought  to  take  place  unless  there  is  the  most  full  and  decisive 
evidence  as  to  the  death,  yet  it  seems  that  actual  proof  of  the  finding  and  identifying  of  the 
body  is  not  absolutely  essential.'  Starkie  Ev.,  vol.  2,  p.  513.  Mr.  Wills  in  his  essay  on  Circum- 
stantial Evidence,  after  quoting  the  remarks  of  Lord  HALE,  says:  '  To  require  the  discovery  of 
the  body,  in  all  cases,  would  be  unreasonable,  and  lead  to  absurdity  and  injustice,  and  is,  in- 
deed, frequently  rendered  impossible  by  the  act  of  the  offender  himself.  The  fact  of  death 
therefore,  may  be  inferred  from  such  strong  and  unequivocal  circumstances  of  presumption  as 
render  it  morally  certain,  and  leave  no  ground  of  reasonable  doubt.'  And  Mr.  Chitty  (1  Chitty's 
Cr.  Law,  738)  says :  '  It  is  said  to  be  a  good  general  rule,  that  no  man  should  be  found  guilty 
of  murder,  unless  the  body  of  the  deceased  is  found;  because  instances  have  arisen  of  persons 
being  executed  for  murdering  others,  who  have  afterward  been  found  to  be  alive.  But  this 
rule  must  be  taken  rather  as  a  caution  than  as  a  maxim  to  be  universally  observed;  for  it  would 
be  easy,  in  many  cases,  so  to  conceal  a  body  as  to  prevent  it  from  being  discovered.'  These  au- 
thorities were  quoted  with  approbation  by  the  Supreme  Court  of  New  York,  in  a  recent  case 
(People  v.  Ruloff,  3  Park.  401),  and  the  rule  laid  down  that,  '  Where  the  body  cannot  be  discov- 
ered, the  corpus  delicti  may  be  proved  by  circumstantial  evidence,  where  the  facts  and  circum- 
stances are  so  strong  as  to  render  it  morally  certain,  and  leave  no  ground  for  reasonable  doubt.' 
(This  case  was,  however,  reversed  on  appeal  by  the  New  York  Court  of  Appeals,  on  the  ground 
that  the  corpus  delicti  had  not  been  sufficiently  proved,  and  the  prisoner  was  subsequently  dis- 
charged )  And  the  same  has  been  held  in  Indiana.  Stocking  v.  State,  7  Ind.  320.  But  see  Peo- 
ple v.  Wilson,  3  Park.  199.  In  the  case  of  Eugene  Aram,  the  skeleton  was  found  in  a  cave,  thir- 
teen years  after  the  murder,  the  proof  of  the  identity  of  the  body  was  very  faint,  and,  but  for 
the  strong  circumstantial  evidence,  a  conviction  could  never  have  been  justified. 

"  Charles  I,  after  being  much  disfigured,  was  identified  by  a  resemblance  to  the  head  upon  the 
coins  issued  during  his  reign.  The  Marchioness  of  Salisbury,  found  among  the  ruins  of 
Hatfield  House,  was  identified  by  gold  appendages  to  the  artificial  teeth.  In  the  case  of  Mary 
Martin,  the  identification  was  by  missing  teeth.  In  the  case  of  Clewes,  the  body  was  identified 

26 


202  THE  LAW  OF  IDENTIFICATION. 

i 

Circumstances  —  remote  or  proximate. 

§  285.  To  fix  the  identity  of  an  accused  party,  as  connected  with 
the  crime  charged  in  the  indictment,  the  circumstances  must  be  re- 
mote or  proximate,  and  the  inference  of  approximation  to  identity 
narrows  the  range  in  which  the  criminal  agent  is  to  be  sought,  using 
this  to  aid  the  proof  by  circumstances  the  more  approximate.  Then, 
other  circumstances  less  remote  and  more  directly  connecting  the 
defendant  with  the  crime,  which  may  in  some  cases,  but  not  in  all, 

twenty-three  years  after  the  murder,  by  the  peculiarity  of  the  teeth.  Cases  of  mistaken 
identity,  however,  are  not  uncommon.  *  *  *  A  very  remarkable  case  occurred  recently  in- 
Connecticut.  A  lad  by  the  name  of  Sage,  during  one  of  the  coldest  mornings  of  the  winter, 
was  sent  by  his  father  to  the  barn  to  feed  the  cattle.  The  boy  declined  going  because  he  had 
been  threatened  with  violence  by  an  Irishman  named  Patrick  Nugent,  who  kept  his  horse  at 
the  barn.  The  father  thought  the  excuse  a  frivolous  one,  and  compelled  the  son  to  go,  who 
departed  in  tears.  This  was  the  last  seen  of  him  by  the  family.  Suspicion  of  foul  play  was 
at  once  aroused,  and  Nugent  was  arrested,  but  the  evidence  was  not  then  deemed  sufficient  to 
commit  him.  A  hole  was  found  in  the  ice  La  the  river  in  rear  of  the  barn,  and  it  was  suggested 
that  the  body  of  the  boy  had  been  put  through  the  opening  into  the  river.  Some  time  after,  a 
body  was  found  on  the  river  bank,  and  was  believed  to  be  that  of  young  Sage.  The  father  saw 
upon  it  several  marks  which  corresponded  with  those  upon  the  body  of  his  son .  The  height 
was  precisely  the  same,  and  a  piece  of  the  coat  was  recognized  as  resembling  the  coat  worn  by 
his  son.  In  the  spring  the  lining  of  an  overcoat,  corresponding  with  that  of  youug  Sago,  was 
found  on  the  banks  of  the  river.  Still  there  was  no  positive  evidence  against  Nugent;  but 
suspicion  grew  stronger  daily,  until  at  length  all  doubt  was  removed  by  the  appearance  of  a 
sailor  named  John  Amos  Benson,  whose  testimony  was  direct  and  positive.  We  give  the 
statement  below,  as  it  was  given  during  the  examination.  Nugent  was  then  arrested.  Benson 
stated  that  he  was  passing  on  the  day  of  the  disappearance  of  young  Sage,  and  when  near  the 
barn  he  heard  an  altercation.  He  looked  in  and  saw  Nugent  and  his  wife,  and  a  boy  whom 
he  described,  and  whose  description  answered  perfectly  to  that  of  young  Sage.  Nugent,  with 
an  oath,  struck  down  the  boy  with  a  club,  and  then  stabbed  him  with  a  knife.  As  he  looked 
out  of  the  door  he  saw  the  witness  Benson  — asked  what  he  was  doing  there,  and  finally  com- 
pelled him  to  come  in  and  help  him  to  remove  the  body  (when  he  said  this,  Nugenfs  wife  ex- 
claimed 'Oh,  what  a  lie!')  Benson  added,  that  he  did  remove  the  body  to  the  haymow, 
which  he  had  never  seen  before  or  since.  He  was  asked  what  young  Sage  had  on  his  feet,  and 
he  answered,  a  pair  of  cowhide  boots,  one  of  which  was  worn  through  at  the  side  and  the 
other  was  worn  through  on  the  ball .  The  father  said  that  was  true,  and  that  his  son  was 
about  having  the  boots  mended.  Blood  was  found  on  the  barn  floor,  and  pieces  of  the  floor  were 
sawed  and  saved  for  the  trial.  The  jack-knife  was  also  found,  or  one  supposed  to  be  the  knife 
used  to  complete  the  murder.  Benson  described  the  gangway  through  which  the  body  was 
carried  to  the  haymow  in  an  adjoining  barn,  and  here  tracks  in  the  snow  were  remembered  to 
have  been  seen  from  one  barn  to  the  other  Benson  said  he  never  saw  the  boy  before  the  mur- 
der, but  he  remembered  his  appearance.  He  picked  out  a  man  in  the  room  who  had  such  hair, 
and  the  father  said  the  comparison  was  correct.  No  doubt  now  remained  in  the  mind  of  any 
person  in  the  room  of  the  guilt  of  Nugent .  When  the  prisoner  was  brought  in,  he  was  asked 
If  he  knew  Benson.  He  said  no;  he  had  never  seen  him  before.  Benson  replied:  '  Yea  you 
do,  Nugent,  and  you  know  you  killed  that  boy,  and  that  I  helped  to  put  the  body  under  the  hay.' 
Benson  was  then  told  to  look  Nugent  in  the  face  and  tell  the  whole  story.  He  did  so,  Nugent 
all  the  while  trembling  like  a  condemned  culprit.  On  being  told  that  he  was  in  a  bad  scrape,  he 
said:  '  I  know  It,  but  God  la  my  man  —he  will  get  me  out  of  it.'  Nugent  was  then  remanded 
to  prison,  and  accidental  circumstances  delayed  his  trial.  Notwithstanding  the  direct  character 
of  the  above  testimony,  subsequent  events  showed  that  the  eye  that  never  sleeps  —  the 
Providence  that  Is  ever  active  In  all  the  affairs  of  mankind  —  was  watchful  and  vigilant  as  ever, 
to  bring  out  the  astounding  truths  that  seem  to  He  so  far  beyond  all  human  vision.  The  miss- 
ing lad  (Sage)  made  his  appearance,  and  the  sailor  confessed  that  he  picked  up  the  facts  about 
the  town,  and  then  concocted  the  whole  story  for  the  sole  purpose  of  obtaining  the  $200  re* 
ward  offered." 


MURDER  —  IDENTIFICATION.  203 

amount  to  the  most  complete  proof  of  identification.  "Wounds  may 
often  serve  as  an  indication  of  the  position  of  the  parties  at  the  time 
a  murder  was  committed.  And  this  often  becomes  especially  im- 
portant when  the  case  depends  entirely  upon  circumstantial  evidence.1 
And  so,  the  fragments  of  garments,  or  written  or  printed  papers,  or 
other  articles  found  in  the  possession  of  the  parties  charged  with 
crime,  with  other  fragments  or  parts  at  the  scene  of  the  crime,  may 
relate  to  the  corpus  delicti  and  from  which  may  be  inferred  a  satis- 
factory identification.  Or  it  may  be  shown  by  wounds  or  marks 
which  have  been  inflicted  upon  the  person  charged  with  the  crime.2 
A  Spaniard  was  convicted  of  having  caused  a  grievous  injury  to  an 
officer  of  the  post-office,  by  means  of  several  packages  containing 
fulminating  powder,  put  by  him  into  the  post-office,  one  of  which 
exploded  in  the  act  of  stamping.  The  letters,  which  were  in  Spanish, 
and  one  of  them  subscribed  with  the  prisoner's  name,  were  addressed 
to  persons  at  Havanna  and  Matanzas,  who  appeared  to  be  objects  of 
the  writer's  malignant  intentions.  There  was  no  proof  that  the  let- 
ters were  in  the  prisoner's  handwriting,  but  he  was  proved  to  have 
landed  at  Liverpool  on  the  20th  of  September,  and  to  have  put 
several  letters  in  the  post-office  on  the  evening  of  the  22d,  the  ex- 
plosion having  occurred  on  the  24th,  and  there  was  found  upon  his 
person  a  seal  which  corresponded  with  the  impression  on  the  letters, 
which  circumstance  (though  there  were  other  strong  facts)  was  con- 
sidered as  conclusive  of  his  guilt,  and  he  was  convicted  on  these  facts.3 

Death,  the  result  of  criminal  agency. 

§  286.  The  Court  of  Appeals  of  New  York  decided,  in  1872,  a  case 
involving  the  question  of  corpus  delicti.  One  Bennett  was  indicted 
for  the  murder  of  his  wife,  and  convicted  of  manslaughter  in  the 
second  degree.  It  was  there  held  that  of  the  crime  of  murder  or 
manslaughter,  the  corpus  delicti  has  two  components,  viz. :  death  as 
the  result,  and  the  criminal  agency  of  another  as  the  cause.  That 
there  must  be  direct  proof  of  one  or  the  other  ;  where  one  is  proven 
by  direct  evidence,  the  other  may  be  established  by  circumstantial 
evidence.  And  in  determining  a  question  of  fact  upon  a  criminal  trial 
from  circumstantial  evidence,  the  facts'  proved  must  not  only  be  con- 
sistent with,  and  point  to  the  guilt  of  the  prisoner,  but  must  be  in- 
consistent with  his  innocence.4  Mr.  Burrill  says :  UA  dead  body  or 

1  McCann  v.  State,  13  S.  &  M.  (Miss.)  Palayo,  Liverpool  Mids,  Quarter  Ses— 

472.  sions,  1836. 

8  Wills  Cir.  Ev.  118.  4  People  v.  Bennett,  49  N.  Y.  137. 
8  Wills  Cir.  Ev.  121.    Citing  Rex  v. 


204  THE  LAW  OF  IDENTIFICATION. 

its  remains  having  been  discovered  and  identified  as  that  of  the  per- 
son charged  to  have  been  slain,  and  the  basis  of  the  corpus  delicti 
having  been  thus  far  established,  the  next  step  in  the  process,  and 
the  one  which  seems  to  complete  the  proof  of  that  indispensable  pre- 
liminary fact,  is  to  show  that  the  death  was  caused  by  the  criminal 
act  of  another  person^ 

Fatal  wound  —  dying  condition  —  identity. 

§  287.  Where  a  person  is  found  not  dead,  but  in  a  dying  condition, 
or  with  fatal  injuries  from  which  death  results,  the  process  of  proof 
is  much  facilitated,  identity  being  easily  shown ;  and  the  declarations 
of  the  injured  person  himself  furnish  important  and  often  conclu- 
sive evidence,  not  only  as  to  the  fact  of  the  crime  but  also  as  to  the 
criminal.  The  subject  of  identification  is  most  frequently  involved  in 
the  leading  description  of  persons,  and  this  becomes  the  most  difficult 
and  perplexing  question  with  which  the  courts  and  juries  have  to 
deal,  involving  (1)  the  person  of  the  subject  of  the  crime,  and  (2) 
the  identity  of  the  criminal.  The  first  process  in  cases  of  homicide, 
or  presumed  murder,  forms  the  most  essential  proof  as  to  the  corpus 
delicti.  This  is  essentially  necessary  in  every  case  where  the  identi- 
fication of  the  criminal  is  made  a  question  or  put  in  issue ;  and  this 
is  equally  essential  as  the  identification  of  the  deceased. 

1  Burrill  Cir.  Ev.  682. 


CHAPTEK  YIIT. 


ANCIENT  RECORDS  AND  DOCUMENTS. 


SEC.  SEC. 

288.  Ancient  document  —  at  thirty  years    307. 

old. 

289.  Same  —  rule  in  several  States.  308. 

290.  Same  —  rule  in  Pennsylvania  and 

New  York.  309. 

291.  Ancient  writings  —  comparison  — 

ejectment.  310. 

292.  Same  —  deeds —  evidence — rule  in    311. 

Illinois.  312. 

293.  Expert  testimony  —  its   use  —  its 

weakness.  313. 

294.  Deed  —  will  —  thirty  years  old  — 

evidence  —  execution.  314. 

295.  Will  —  lands  —  possession — thirty 

years.  315. 

296.  Ancient  will —  date  —  ejectment — 

rule  in  New  York.  316. 

297.  Will — devisees — name — identity  of    317. 

testator. 

298.  Name  in  judgment  — idem  sonans.     318. 

299.  Identity  of  devisee  —  evidence  of 

heirship.  319. 

300.  Railroad  accident  —  death  —  dam- 

ages— identity  of  heirs.  320. 

301.  Church  register — marriages — bap-    321. 

tisms. 

302.  Same — same — plea  of  infancy.  322. 

303.  Proof  of  pedigree  —  rule  as  to  evi-    323. 

dence.  324. 

304.  Same  —  ejectment — agent  —  corre-    325. 

spondence. 

305.  Same — declarations —  documents —    826. 

land  titles. 

306.  Of  child  —  legacy  —  necessary  evi- 

dence. 


Church  register —  day-book  —  evi- 
dence. 

Children — when  legitimate — proof 
of  marriage. 

Church  records — evidence  of  pedi- 
gree. 

Identity  of  parties  to  actions. 

Ejectment  —  burden  of  proof. 

Same —  ancient  documents  —  wills 
—deeds. 

Same — holding  under  sheriff 's  deed 
— name. 

Married  woman — deed  to  land — in 
former  name. 

Evidence  of  identity  —  exceptions 
to  general  rule . 

Identity  of  ancestor — claim  of  land. 

Judgment  docket — names — rule  in 
Pennsylvania. 

Same  —  idem  sonans  —  judgment 
liens. 

Judgment — defective  entry — effect 
— notice. 

Same — purchaser  or  incumbrancer. 

Judgment — indexing — when  is  not 
docketing. 

Same  —  index — rule  in  Nebraska. 

Judgment — names — rule  in  Texas. 

Same  —  same  —  rule  in  Iowa. 

Name  misspelled — fraudulent  pur- 
chaser. 

Entering  on  the  docket  —  when 
lien  attaches. 


Ancient  documents  —  at  thirty  years  old. 

§  288.  In  the  identification  of  ancient  deeds,  wills  and  other  docu- 
ments, which  have  been  duly  attested  by  subscribing  witnesses,  and 
which  documents  have  arrived  at  the  age  of  thirty  years,  they  prove 
themselves,  when  produced  from  the  proper  custodian  or  repository, 
and  it  is  not  necessary  to  produce  the  attesting  witnesses ;  yet  they 
may  be  called  by  the  contesting  party,  if  he  has  put  in  issue 
the  genuineness  of  the  document,  when  the  burden  of  proof  will 
devolve  upon  him.1  This  rule  found  its  reason  and  justice  in 

1  Stockbridge  v.  West  Stockbridge,  14  Mass.  256;  Talbot  v.  Hodson,  7  Taunt.  251. 


206  THE  LAW  OF  IDENTIFICATION. 

the  presumption  that  within  thirty  years  the  witnesses  will  have 
died,  or  otherwise  disappeared  ;  and  so  where  the  instrument  has  been 
legally  executed  thirty  years  prior,  it  proves  itself  without  the  attest- 
ing witnesses.  As  it  is  necessary  to  fix  some  period  of  time  at  which 
the  attesting  witnesses  may  be  dispensed  with,  and  the  document  to 
identify  and  prove  itself,  the  law  has  fixed  that  period  at  thirty 
years.1  But  the  instrument  to  be  received  and  admitted  in  evidence 
must,  it  is  held,  be  fair  and  free  from  any  suspicion  of  fraud  or  un- 
fairness. It  must,  at  least,  appear  in  all  things  to  be  complete,  valid 
and  regular.2  In  a  case  in  England  where  the  will  in  question  was 
more  than  thirty  years  old,  the  handwriting  of  two  of  the  attesting 
witnesses  was  proved,  and  no  account  was  given  of  the  other.  The 
will  appeared  by  the  date  to  be  thirty  years  old.  "  The  testator  died 
upwards  of  twenty  years  ago,"  and  upon  his  death  it  was  proved  in 
the  ecclesiastical  court,  since  which  it  has  not  been  acted  upon.  The 
question  was  whether  the  rule  applicable  to  deeds  should  be  applied 
as  well  to  wills.  And  the  rule  was  held  to  apply  in  the  same  man- 
ner and  with  like  force.  Mr.  Greenleaf  (vol.  1,  §  21)  says  :  "  The 
same  principle  applies  to  the  proof  of  the  execution  of  ancient  deeds 
and  wills.  Where  these  instruments  are  more  than  thirty  years  old, 
and  are  unblemished  by  any  alterations,  they  are  said  to  prove 
themselves ;  the  bare  production  of  them  is  sufficient,  the  subscrib- 
ing witnesses  being  presumed  to  be  dead.  This  presumption,  so  far  as 
this  rule  of  evidence  is  concerned,  is  not  affected  by  proof  that  the 
witnesses  are  living."  This  rule  of  evidence  is  general,  and  has  been 
often  applied  to  deeds,  wills  and  other  documents,  both  in  England 
and  America,  and  has  been  established  too  long  to  be  disregarded, 
or  to  justify  an  inquiry  into  its  origin  or  its  reason.3  And  it  must 
in  all  such  cases  be  made  to  appear  that  the  document  or  instrument 

1  Vattier  v.  Hinde,  7  Pet.  253;   King  v.  Young,  63  111.  106;  Doe  v.  Samples, 

v.  Little,  1  Cush.  436;  Pitts  v.  Temple,  2  8  Ad.  &  El.  151;  Reaume  v.  Chambers, 

Mass.  538;  Stockbridge  v.  West  Stock-  22  Mo.  36;   Roe  v.  Rawlings,  7   East, 

bridge,  14  id.  256;  Burling  v.  Patter-  291;  Jackson  v.  Davis,  5  Cow.  123;  Lau 

son,    9  Carr.  &  P.  570;     Northrop    v.  v.  Mumma,  43  Pa.  St.  276. 

Wright,  24  Wend.  226;  Talbot  v.  Hod-  3  Doe  v.    Deakin,    3   Carr.  &  P.  402; 

son,  7  Taunt.  251;  Stoddard  v.  Cham-  Chelsea  Water- works  v.  Cowper,  1  Esp. 

bers,  2  How.  284;  Burgin  v.  Chenault,  275;  Rex  v.   Farringdon,  2  T.   R.  471; 

9   B.   Mon.  285;     M'Kenire  v.   Fraser,  Rex  v.  Long  Buckby,  7  East,  45;  Doe  v. 

9  Ves.  5;    Clark  v.  Owens,    18    N.  Y.  Wolley,   8   Barn.   &  Cres.   22;   Rex  v. 

434;  Little  v.  Downing,  87  N.  H.  355;  Ryton    5    T.     R.     259;     M'Kenire     v. 

Urket  v.  Coryell,  5  Watts  &  8.  60;  Doe  Fraser,   9   Ves.    5;   Cook   v.   Totton,   6 

v.  Roe,  81  Ga.  593;  McReynolds  v.  Lon-  Dana,  110;  Walton  v.  Coulson,   1   Mc- 

genberger,    57   Pa.   St.    13;    Carter   v.  Lean,  124;  Settle  v.  Alison,  8  Qa.  201; 

Chaudron,  21  Ala.  72;  Bell  v.  McCawley,  Winn  v.  Patterson.  9  Pet.  674;  Thrus- 

29  tia.  355.  ton  v.  Masterson,  9  Dana,  283;  Jackson 

1  Willson  v.  Belts,  4  Denio,  201;  Fell  v.  Blanshan,  3  Johns.  292. 


ANCIENT  RECORDS  AND  DOCUMENTS.  207 

thus  produced  comes  from  such  custody  and  repository  as  to  afford, 
at  least,  a  reasonable  presumption  in  favor  of  its  genuineness,  and 
that  will,  in  all  respects,  free  it  from  any  just  ground  of  suspicion.1 
In  an  English  case  Lord  TENTEKDEN,  0.  J.,  said :  "  The  rule  of  com- 
puting the  thirty  years  from  the  date  of  the  deed  is  equally  applica- 
ble to  a  will.  The  principle  upon  which  deeds  after  that  period  are 
received  in  evidence  without  proof  of  execution  is,  that  the  witnesses 
may  be  presumed  to  have  died."2  He  omitted,  however,  the  dis- 
tinction that,  in  the  deed,  the  thirty  years  will  commence  running 
from  the  date  of  the  deed,  but  as  to  wills,  from  the  death  of  the  tes- 
tator; as  we  shall  see.  In  a  case  in  Illinois,  it  was  held  that  a  con- 
veyance, though  more  than  thirty  years  old,  cannot  be  admitted  as 
an  ancient  deed,  when  purporting  to  be  executed  by  one  acting  in  a 
fiduciary  character,  in  the  absence  of  proof  of  his  authority  to  make 
the  deed.  That  when  a  deed  purports  to  have  been  made  under  a 
power,  and  is  sought  to  be  used  in  evidence,  that  power  must  be 
made  to  appear.3  In  New  York  it  was  held  that,  in  order  to  entitle 
a  deed  to  be  read  in  evidence  as  an  ancient  deed,  without  further 
evidence  of  its  execution,  proof  that  part  of  the  premises  contained 
in  it  have  been  possessed  under  it  for  thirty  years  is  sufficient,  even 
against  one  in  possession  of  another  part.* 

Same  —  rule  in  several  States. 

§  289.  In  an  action  of  trover  in  Georgia,  it  was  said  that  muni- 
ments of  title,  proven  to  have  been  in  existence  for  forty  years,  with 
possession  in  conformity,  and  coming  from  the  proper  custody,  are 
admissible  as  ancient  documents?  And  in  the  same  State,  that  a 
deed  for  land  more  than  thirty  years  old,  found  in  the  proper  cus- 
tody, accompanied  by  other  deeds,  together  constituting  a  chain  of 
title,  and  free  from  all  suspicious  appearance,  is  admissible  in  evi- 
dence without  any  further  proof  of  execution.6  And  in  New  Hamp- 
shire, in  an  action  of  trespass  quare  clausum  fregit,  it  was  held  that 
ancient  records,  when  accompanied  by  admission  that  they  came  from 
the  proper  custody,  are  admissible  in  evidence  without  further  proof 
of  their  authenticity ;  and  further,  that  when  a  record  becomes  illegi- 
ble by  lapse  of  time,  the  testimony  of  a  witness  who  had  examined 

1  Jackson  v.  Davis,  5  Cow.  123;  Doe  3  Doe  v.  Wolley,  8  Barn.  &  Ores.  23. 

v.  Deakin,  3  Carr.  &  P.  402;  Fetherly  8  Fell  v.  Young,  63  111.  106. 

v.   Waggoner,   11  Wend.  603;   Doe  v.  4  Jackson  v.  Davis,  5  Cow.  123. 

Wolley,  8  Barn.  &  Cres.  22;  Jackson  v.  5  Bell  v.  McCawley,  29  Ga.  355. 

Christinan,  4  Wend.  277;  Winn  v.  Pat-  6  Doe  v.  Roe,  31  Ga.  593. 
terson,  9  Pet.  674 


208  THE  LAW  OF  IDENTIFICATION. 

and  copied  it  while  legible  was  properly  received  to  supply  the  de- 
fect.1 The  same  rule  was  held  in  Alabama  in  an  action  of  ejectment, 
that  a  deed  more  than  thirty  years  old,  and  having  nothing  suspicious 
about  it,  is  presumed  to  be  genuine,  without  express  proof,  the  wit- 
nesses being  presumed  to  be  dead ;  and  when  it  was  found  in  the 
proper  custody,  and  is  corroborated  by  the  enjoyment  under  it,  or 
by  other  equivalent  explanatory  proof,  is  allowed  to  prove  itself.2 

Same  —  rule  in  Pennsylvania  and  New  York. 

§  290.  The  same  rule  prevails  in  Pennsylvania.  When  the  instru- 
ment is  more  than  thirty  years  old,  and  unblemished  by  alterations 
and  found  in  the  proper  custody,  it  proves  itself  and  is  admissi- 
ble, although  the  subscribing  witnesses  are  living.3  The  courts 
of  New  York  adhere  to  it.  In  an  action  of  ejectment,  involving  a 
will  as  one  of  the  muniments  of  title,  held,  that  when  it  was  pro- 
duced on  a  trial,  and  was  more  than  thirty  years  old,  the  legal  pre- 
sumption attached  that  the  witnesses  were  dead,  and  that  the  party 
might  resort  to  secondary  evidence  to  prove  the  will,  and  that  its 
production  with  the  probate  attached  was  sufficient  evidence  to  au- 
thorize its  being  read  in  evidence  on  the  trial.4  Other  American 
States  hold  this  same  rule,  and  as  we  have  seen,  it  prevails  in  Eng- 
land, the  source  from  whence  we  borrow  it  and  many  other  valu- 
able rules. 

Ancient  writings  —  comparison  —  ejectment. 

§  291.  In  an  action  of  ejectment,  brought  in  Pennsylvania,  it  was 
held  that,  in  order  to  prove  the  handwriting  of  a  person  who  had 
been  dead  more  than  forty  years,  witnesses  may  speak  from  com- 
parison with  signatures  and  writings  in  family  records,  admitted  by 
them  to  be  in  such  person's  handwriting  ;  from  letters  in  possession  of 
his  family,  purporting  to  have  been  signed  by  the  party  in  his  life- 
time ;  and  from  official  documents  received  in  the  proper  office,  and 
acted  upon  as  genuine.5  And  in  New  York,  in  an  ejectment  case, 
it  was  held  that  where  a  witness  to  an  ancient  deed  is  dead,  and  such 
a  period  of  time  has  elapsed  after  the  paper  was  signed,  that  no  per- 
son can  be  presumed  to  be  then  alive,  who  can  testify  to  the  signature 
of  the  witnesses  or  parties,  evidence  of  a  witness  identifying,  by 

1  Little  v.  Downing,  37  N.  H.  855.  8  Sweigart     v.    Richards,    8    Pa.   St. 

1  Carter  v.  Chaudron,  21  Ala.  72.  436.     Citing  M'Cormick  v.  M'Murtrie,  4 

3  McReynolds    v.    Longenberger,   57  Watts,  192;  Payne  v.  Craft,  7  Watts   & 
Pa.  St.  18.  8.  458;  Nieinan  v.  Ward,  1  id.  82. 

4  Northrop  v.  Wright,  24  Wend.  221. 


ANCIENT  RECORDS  AND  DOCUMENTS.  209 

verification,  the  signatures  of  both  parties  and  witnesses  should  be 
received  in  evidence,  though  the  witness  may  have  no  knowledge 
of  the  handwriting  except  that  derived  from  an  inspection  of  such 
ancient  writings,  which  writings  have  been  preserved  as  muniments 
of  title  to  the  estate  in  question.1 

Same  —  deeds  —  evidence  —  rule  in  Illinois. 

§  292.  In  Illinois  ejectment  was  brought,  and  it  appeared  that  an 
ancient  deed,  to  be  admitted  in  evidence,  must  be  proved  as  having 
been  duly  executed  in  some  way  to  the  satisfaction  of  the  court,  or 
it  cannot  be  received.  The  party  producing  it  must  do  every  thing 
in  his  power  to  raise  the  presumption  in  favor  of  its  genuineness. 
The  main  question  in  that  case  was,  as  to  the  admissibility  of  two 
deeds  which  were  admitted  as  ancient  deeds,  without  any  proof  of 
their  execution.  One  of  them  bore  date  in  1819,  and  there  was  a 
certificate  upon  it,  purporting  to  show  that  it  was  acknowledged  in 
open  court  in  Tennessee  in  the  eame  year,  and  from  the  certificate 
of  the  record  of  deeds  of  Madison  county,  where  the  land  lay,  it  ap- 
peared to  have  been  recorded  in  1820.  But  it  was  not  insisted  that 
the  acknowledgment  was  according  to  law.2  In  the  trial  of  the  right 
of  property  in  England,  it  was  held  that,  where  the  attestation  of  a 
deed  is  in  the  usual  form,  and  the  attesting  witness  recollects  seeing 
the  party  sign  the  deed,  but  does  not  recollect  any  other  form  being 
gone  through,  it  will  be  for  the  jury  to  say,  on  the  evidence,  if  the 
deed  was  sealed  and  delivered,  as  all  that  is  very  likely  to  have  oc- 
curred, though  the  witness  did  not  remember  it..^  It  was  also  held 
that  a  will  of  land  which  has  accompanied  the  possession  for  thirty 
years  is  evidence,  without  proof  of  its  execution.4 

Expert  testimony  —  its  use  —  its  weakness. 

§  293.  In  an  action  in  Michigan  by  a  bank  against  the  indorser  of 
a  promissory  note  for  $5,000,  the  defense  was,  that  the  indorsement 
was  not  genuine.  It  was  held  that,  where  the  genuineness  of  the  de- 
fendant's signature  is  put  in  issue,  experts  may  properly  compare  it, 
before  the  jury,  with  his  acknowledged  signature  to  other  papers  in 
the  case.  But  defendant  could  not,  on  cross-examination,  be  required 
to  write  his  name  in  court,  for  the  purpose  of  comparison  ;  nor  to 
introduce  signatures  made  by  him  before  the  instrument  in  suit 
The  evidence  for  the  bank,  to  prove  that  the  instrument  was  genuine, 

1  Jackson  v.  Brooks,  8  Wend.  436.  *  Burling  v.  Paterson,  9Carr.  &  P.  570. 

s  Smith  v.  Rankin,  20  HI.  14.  4  Shatter  v.  Brand,  6  Binn.  435. 

27 


210  THE  LAW  OF  IDENTIFICATION. 

was  confined  to  the  testimony  of  certain  experts,  who  were  allowed 
to  compare  it,  before  the  jury,  with  signatures  of  the  defendant  to 
papers  in  the  case,  and  admitted  to  be  his.  But  the  court  refused  to 
permit  the  defendant  to  bring  in  his  signatures  prior  to  the  signing 
of  the  note,  and  not  in  the  case  and  having  no  connection  with  it.- 
The  rule  in  this  country  seems  to  be  very  generally  settled  that,  in 
such  cases,  signatures  not  connected  with  the  case  cannot  be  in- 
troduced for  the  purpose  of  comparison.2  In  a  case  in  the  District 
of  Columbia,  CARTTER,  C.  J.,  said  :  "  These  three  exhibits  presented 
by  Mrs.  Cowan  are  either  true,  or  they  involve  a  series  of  complica- 
tions and  forgeries  that  would  do  credit  to  the  hand  of  a  masculine 
adept  who  has  had  the  benefit  of  two  or  three  convictions  and  the 
experience  of  some  years'  service  in  the  penitentiary.  *  *  *  But 
upon  what  basis  is  it  claimed  that  there  is  any  proof  of  forgery  here, 
after  departing  from  the  oath  of  the  parties  ?  The  signatures  of 
these  papers  are  claimed  not  to  be  genuine,  and  here  we  are  treated  to 
the  opinion  of  a  half  dozen  who  claimed  to  be  experts,  and  who  came 
up  and  gave  us  their  views  as  to  the  genuineness  of  these  signatures. 
Of  all  kinds  of  evidence  admitted  in  a  court,  this  is  the  most  unsat- 
isfactory. It  is  so  weak  and  decrepid  as  scarcely  to  deserve  a  place 
in  our  jurisprudence."  The  remarks  of  this  learned  judge  must 
meet  with  the  concurrence  of  every  lawyer  who  has  bestowed  much 
thought  on  the  subject.* 

Deed  —  will  — thirty  years  old  —  evidence  —  execution. 

§  294.  It  is  now  generally  held  to  be  the  settled  rule  that  to 
authorize  the  reading  in  evidence  of  a  deed  more  than  thirty 
years  old,  without  proof  of  its  execution,  as  prescribed  by  the 
rules  of  law,  it  must  be  accompanied  by  possession.4  And  where  a 

1  First   Nat.    Bank  of    Hougliton  v.  8  Cowan  v.  Beall,  1  McArth.  270. 

Robert,  41  Mich.  709;  Vinton  v.  Peck,  4  Crane  v.  Marshall,  16  Me.  27;  Ridge. 

14  id.  295.  ley  v.  Johnson,   11  Barb.  527;  Wagner 

9  Little  v.  Beazley,  2  Ala.  703 ;  Myers  v.  Aiton,  1  Rice  (S.  C.),  100;  Homer  v. 

v.   Toscan,   8   N.  H.  47;  Goodyear  v.  Cilley,  14  N.  H.  85;  Brown  v.  Wood,  6 

Vosburgh,  63  Barb.  154  ;  Randolph  v.  Rich.  Eq.  (S.  C.)  155;  Green  v.  Chelsea, 

Loughlin,    48   N.   Y.    456  ;  Wilson   v.  24  Pick.    71;  Dishazer  v.    Maitland,  12 

Kirkland,    5    Hill,    182  ;    Bowman   v.  Leigh  (Va.),  524;  Barr  v.  Gratz,  4  Wheat. 

Sanborn,  25  N.  H.  110 ;  Pope  v.  Askew,  218;  Bank,  etc.,  v.  Rutland,  33  Vt.  414; 

1  Ired.  16;  Hanley  v.  Gandy,  28  Tex.  211;  Willsonv.  Betts,4Denio,201;Townsend 

Moore  v.  United  States,  91  U.  S.  271;  v.  Downer,  82  Vt.  183;    Stockbridge  v. 

Bank  v.  Whitehill,  10  Serg.  &  R.  110  ;  West  Stockbridge,  14  Mass.  257;  Jackson 

Vickroy  v.  Skelley,  14  id.  872;  Hazleton  v.  Laroway.  3  Johns.  Cas.  283;  Hewlett 

v.  Bank,  82  Wis.  84;  Pierce  v.  Northey,  v.  Cock,  7  Wend.  871;  Hall  v.  Gittings,  2 

14  id.  9;  Cowan  v.  Beall,  1  McArth.  (D.  Harr.  &  J.  880;  Winston  v.  Gwathmey,  8 

C.)  270;   Tome  v.   R.    Co.,  89  Md.   86;  B.  Mon.  (Ky.)  19. 
Bishop  v.  State,  80  Ala.  84. 


ANCIENT  RECORDS  AND  DOCUMENTS.  211 

will  of  lands  is  relied  upon,  and  the  party  has  been  in  possession  for 
thirty  years,  it  has  been  held  that  the  thirty  years  will  not  commence 
running,  like  a  deed,  from  its  date,  but  from  the  death  of  the  testator. 
The  reason  of  this  distinction  is  obvious  —  the  deed  takes  effect  from 
the  date  of  its  execution,  while  the  will  never  takes  effect  until  the 
death  of  the  testator  l  In  an  action  of  ejectment  in  New  York,  the 
plaintiff's  title  depended  upon  the  execution  of  a  will.  Where  a 
witness  testified,  in  the  case  of  a  lost  will,  thirty  years  old,  that  she 
was  called  upon  to  witness  the  execution  of  the  will ;  that  the  testator 
signed  it  in  the  presence  of  herself  and  her  husband  and  a  third  per- 
son, but  that  she  did  not  recollect  that  the  other  person  signed  his 
name  as  a  witness,  it  was  held  that  the  evidence  was  competent 
to  submit  it  to  the  jury,  and  that  it  would  authorize  the  finding  of 
the  due  execution  of  the  will.2 

Will  — lands  —  possession  —  thirty  years. 

§  295.  A  will  more  than  thirty  years  old,  from  the  death  of  the  tes- 
tator, and  possession  of  the  land,  held  in  conformity  to  it  for  that 
length  of  time,  may  be  read  in  evidence  as  a  link  in  the  chain  of  title 
without  further  evidence  of  its  execution.  Where  the  existence, 
due  execution  and  loss  of  a  will  are  proved,  its  contents  may  be  shown 
by  parol,  and  the  proof  of  the  loss,  being  addressed  to  the  court,  need 
not  be  as  strict  and  technical  as  when  submitted  to  the  jury.  And 
in  an  action  of  ejectment,  where  the  plaintiff  derives  title  from  his 
grandfather,  which  action  is  brought  subsequent  to  the  death  of  his 
father  and  mother,  admissions  made  by  the  father  and  mother  during 
their  life-time,  as  to  the  existence  and  loss  of  the  will  alleged  to  have 
been  executed  by  the  grandfather,  may  properly  be  received  in 
evidence.2 

Ancient  will  —  date  —  ejectment  —  rule  in  New  York. 

§  296.  It  was  held,  in  an  action  of  ejectment  in  New  Tork5  that  in 
order  to  entitle  a  will  to  be  read  in  evidence  as  an  ancient  deed  with- 
out further  proof  than  its  mere  production,  it  must  beat  least  thirty 
years  old  from  the  death  of  the  testator,  for  the  age  of  the  will  must  be 
computed  from  the  time  of  the  testator's  death,  and  not  from  its  date. 
And  so,  where  a  will  was  dated  in  1770,  and  possession  of  the  land 
was  taken  under  it  and  held  from  1780  (when  the  testator  died),  for 

1  Doe  v.  Wolley,  8  Barn.  &  Cres.  22;        9  Fetherly  v.  Waggoner,  11  Wend. 
Harris  v.   Eubanks,    1    Speers  (S.   C.),     599. 
183.  And  see  Doe  v.  Owen,  8  Carr.  &  P. 
751 ;   Jackson  v.  Blanshan,  3  Johns.  292. 


212  THE  LAW  OF  IDENTIFICATION. 

twenty-seven  years,  it  was  not  allowed  to  be  read  in  evidence,  without 
proof  of  its  execution.1 

Will  —  devisees  —  name  —  identity  of  testator. 

§  297.  One  C.  died  in  Ohio,  devising  his  property  to  his  children, 
"William  and  Elleu.  The  executor,  being  unable  to  find  the  devisees, 
turned  the  property  over  to  the  widow,  an  imbecile ;  and  after  the 
lapse  of  fourteen  years,  the  plaintiffs  came  forward  and  claimed  to 
be  such  children  and  sought  to  recover  the  property  ;  and  the  ques- 
tion was,  whether  the  father,  who  had  abandoned  them  in  another 
State,  was  the  same  "  C."  as  the  testator.  It  was  held  that  any 
tendency  of  the  courts  to  relieve  parties  from  the  onus  of  proving 
identity,  because  easier  disproved  than  established,  does  not  apply 
where  the  defendant  is  at  a  greater  disadvantage  than  the  plaintiff, 
as  in  this  case,  where  he  was  a  guardian  of  an  imbecile,  and  without 
personal  knowledge  or  access  to  the  facts.  Identity  may  be 
proved  by  the  concurrence  of  several  characteristics.  Identity  of 
person  may  be  presumed  from  identity  of  name.  Evidence  of  the 
personal  appearance  of  a  man,  from  memory,  fifty  years  back,  is  too 
unreliable  to  be  considered.  The  memory  of  an  old  lady,  as  to  do- 
mestic occurrences  of  her  youth,  such  as  marriage,  is  entitled  to  more 
weight  than  the  memory  of  an  old  man  ;  and  his  memory  as  to  business 
matters  would  be  more  reliable  then  hers.  Declarations  of  the  testa- 
tor as  to  his  history  and  family  are  admissible.  So  is  a  comparison  of 
handwriting.  In  tracing  the  movements  of  the  deceased,  the  court 
will  take  judicial  notice  of  the  history  of  the  country,  as  to  the  date 
of  the  Seminole  war  in  Florida,  and  the  length  of  its  duration.2 

Name  in  judgment  —  idem  sonans. 

§  298.  As  to  the  identity  of  the  name,  raising  a  presumption 
of  the  identity  of  the  person,  it  was  held  in  New  York,  that  the 
omission  of  the  middle  letter  of  the  middle  name  of  the  defendant 
in  the  entry  and  docket  of  a  judgment  recovered  against  him  does 
not  prevent  its  becoming  a  lien  upon  his  real  estate,  as  against  sub- 
sequent purchasers  from  him  in  good  faith.  This  does  not  seem 
clear,  and  perhaps  is  not  the  general  rule.3  It  will  be  readily  per- 
ceived that  the  above  differs  from  the  rule  as  to  idem  sonans,  which 
is  not  to  be  rigidly  enforced  ;  the  questions  being  mainly,  whether 

1  Jackson  v.  Blansban,  8  Johns.  292.  9  Sperry  v.  Tebbs,  20  Week.  L.  Bull. 

And  see  Doe  v.  Phillips.  9  Johns.  169;  181. 

Doe  v.   Campbell,  10  id.  475;   Rex  v.  8  Clute  v.  Emmerich,  26  Hun,  10. 
Meekley,  7  East,  45. 


ANCIENT  RECORDS  AND  DOCUMENTS.  213 

the  variance  from  the  true  name  is  material,  and  this  may  be  a  ques- 
tion of  fact  for  the  jury,  or  it  may  be,  under  the  general  rule  on  the 
subject,  decided  by  the  court,  unless  there  is  a  doubt  as  to  whether  it 
is  idem  sonans;  yet,  except  in  very  clear  cases,  it  would  seem  to  be 
the  safer  practice  to  submit  the  question  to  the  jury,  as  one  of  fact 
for  their  determination. 

Identity  of  devisee  —  evidence  of  heirship. 

§  299.  Gagani  brought  ejectment  against  Dupoyster  in  Kentucky 
to  recover  a  tract  of  land,  claiming  as  a  devisee  under  the  last  will 
and  testament  of  Baker  Woodruff,  deceased,  to  whom  the  land  had 
been  granted  by  the  Commonwealth  of  Kentucky,  and  which  land  had 
been  set  apart  to  her  by  partition.  The  question  finally  resolved  it- 
self into  one  of  relationship,  and,  therein,  the  question  of  identity ; 
and  it  was  held,  substantially,  that  to  prove  by  a  third  person  dec- 
larations of  another,  as  to  relationship  of  the  person  in  question  to 
another,  it  must  appear  that  the  person  making  the  declarations  is 
dead,  and  that  he  was  related  to  the  person  in  question  by  blood  or 
marriage,  and  the  person  hearing  the  declarations  may  prove  them, 
whether  he  (the  witness)  be  related  or  not,  if  otherwise  competent 
to  testify.  But,  where  relationship  is  attempted  to  be  proved  by 
general  repute  in  the  family,  and  not  by  the  declarations  of  de- 
ceased members  of  the  family,  it  can  be  proved  only  by  surviving 
members  of  the  family.  But,  as  in  the  case  in  hand,  the  issue  being 
whether  appellee  was  the  devisee  named  in  the  will,  the  declarations 
of  other  devisees  in  the  will,  that  the  appellee  was  the  person  named, 
were  hearsay  and  incompetent,  the  contest  not  being  between  the  ap- 
pellee and  other  devisees.  This  does  not  seem  very  clear,  in  view  of 
the  general  rule  on  the  subject.  But  to  use  the  language  of  BEN- 
NETT, J.,  who  delivered  the  opinion  of  the  court  in  this  case :  "  In 
this  contest  between  appellant  and  appellee,  wherein  it  was  denied 
that  the  appellee  was  the  devisee  under  the  will  of  Baker  Woodruff, 
the  fact  attempted  to  be  established  by  the  witness  was  that  he  heard 
these  persons,  who  claimed  to  be  devisees  under  said  will,  say  that 
the  appellee  was  the  person  named  as  one  of  the  devisees  in  said  will. 
The  evidence  was  clearly  incompetent."1 

Railroad  accident  —  death —  damages  —  identity  of  heirs. 

§  300.  An  action  was  brought  against  a  railroad  company  to  re- 
cover damages  for  injuries  resulting  in  death.     The  action  was 

1  Dupoyster  v.    Gagani,  84  Ky.    403  (1886). 


214:  THE  LAW  OF  IDENTIFICATION. 

brought  under  the  statute  of  Colorado,  by  an  administrator,  for  the 
use  and  benefit  of  the  surviving  children  of  the  deceased.  To  prove 
lawful  issue  surviving  the  intestate,  plaintiff  relied  mainly  upon  the 
conduct  and  demeanor  of  the  adults,  who  came  to  their  death  in  the 
accident  on  the  railroad,  and  upon  certain  letters  and  documents 
found  in  a  chest  being  then  transported  with  them  in  the  shape  of 
baggage.  It  was  held  that  declarations  of  a  decedent,  contained  in 
letters  shown  to  have  been  written  by  him,  are  competent  to  show 
his  marriage  ;  that  documents  purporting  to  be  transcripts  from 
certain  official  registers  found  in  the  baggage  of  a  railway  passenger 
who  was  killed  in  an  accident  are  admissible  upon  the  question  of 
marriage  of  the  party,  without  evidence  of  their  authenticity.1  The 
importance  of  this  branch  of  the  law  of  evidence  is  suggested,  and 
fully  shown  by  the  great  variety  of  cases,  and  the  great  multiplicity 
of  circumstances  under  which  its  aid  is  invoked  to  enable  the  jury 
to  understand  the  case  before  them  ;  and  the  legal  means  to  be  re- 
sorted to,  in  order  to  establish  identity,  must,  of  necessity,  be  sug- 
gested by  the  facts  of  the  particular  case.  Identity,  like  other  facts, 
may  be,  and  very  often  is,  proved  wholly  by  circumstances  —  often 
singular  and  peculiar,  and  yet  sufficient  to  generate  full  belief.  It 
has  been  well  said,  that  "  many  curious  cases  of  doubtful  or  disputed 
identity  might  be  cited  to  illustrate  the  singular  fortuitous  resemblance 
between  individuals,  not  only  in  their  general  appearance,  but  also 
in  accidental  marks.  Other  cases  might  be  cited  and  also  related,  in 
which  long  absence  and  various  circumstances  have  so  changed  a 
person,  that  his  nearest  relatives  have  not  been  able  to  recognize  him. 
Usually  in  cases  of  disputed  identity,  whether  of  the  dead  or  living, 
a  scar,  a  deformity,  or  some  congenital  or  indelible  mark,  as  navus 
matermis,  or  mothers  mark,  a  male,  tattooing,  etc.,  has  proved  the 
only  means  of  recognition."  And  these  difficulties  in  identity  often 
arise  in  the  attempt  to  prove  an  alibi,  either  of  the  prisoner  or  of  the 
deceased,  in  either  of  which  cases  the  same  degree  of  evidence  is  re- 
quired to  prove  identity. 

Church  register  —  marriages  —  baptisms. 

§  301.  As  a  proof  of  personal  identification,  the  aid  of  church 

registers  are  often  invoked.     But  there  has  been  quite  a  difference 

in  the  ruling  in  England  and  in  this  country,  as  to  their  admissibil- 

ity,  owing  to  the  requirements  as  to  keeping  them,  how  they  shall 

1  Kansas,  etc.,  By.   Co.   v.   Miller,  2  Col.  445}. 


ANCIENT  RECORDS  AND  DOCUMENTS.  215 

be  kept,  and  what  they  shall  contain.  And  they  were  admissible 
there,  in  evidence  when,  and  only  when,  they  possessed  all  the  re- 
quisites ;  and  this  was  said  to  be  the  principle  upon  which  they  are 
entitled  to  credit.  And  as  a  rule  they  are  admissible  in  evidence, 
not  to  prove  all  that  they  may  contain,  but  all  that  they  are  required 
to  contain,  not  to  be  evidence  of  what  they  are  not  required  to  con- 
tain.1 But  it  is  obviously  essential  to  the  official  character  of  these 
records  that  the  entries  be  promptly  made,  as  long  delay  may  impair 
their  credibility  ;  and  to  be  made  by  the  person  who  is  the  proper 
custodian,  or  whose  business  and  duty  it  is  to  make  them,  and  in  the 
mode  prescribed,  if,  in  fact,  any  mode  has  been  prescribed.2  And 
the  entire  record  of  the  matter  should  be  certified  ;  a  mere  certifi- 
cate that  certain  facts  do  so  appear  will  not  suffice.3  In  proof  of 
marriages,  the  parish  register  is,  when  taken  alone,  but  an  evidence 
of  the  marriage  and  its  celebration,  for  these  are  the  only  facts  that 
can  be  entered.4  And  the  same  may  be  said  of  the  register  of  bap- 
tisms, as  an  evidence  to  be  furnished  by  the  record.5  And  it  has 
been  held  (though  now  doubted)  that  the  register  must  be  one  which 
the  law  requires  to  be  kept.6  It  is  not  so  in  this  country. 

Same  —  same  —  identity  —  plea  of  infancy. 

§  302.  The  register  of  a  child's  age,  not  being  in  the  record  of  his 
baptism,  is  not  proof  of  his  age  and  could  not  be  used  in  support 
of  a  plea  of  infancy.7  And  in  such  case  the  register,  while  it  is 
evidence  of  the  identity  of  the  name,  cannot  be  evidence  of  the 
identity  of  the  person.  The  identity  of  the  person  must,  when  in 
doubt  or  dispute,  be  proved  by  competent  evidence.8  As  it  was 
held  in  Maine  in  an  attempt  to  prove  marriage,  that  "proof  of  iden- 
tity must  be  produced  in  such  cases  —  it  must  be  proof  of  identity  of 
person  and  not  of  name  merely ;  it  may  serve  as  a  guard  against 
fraud  and  deception."9 

Proof  of  pedigree  —  rule  as  to  evidence. 

§  303.  The  general  rule  as  to  the  proof  of  pedigree  is,  that  the  reg- 

1  Brown  v.  Hicks,  1  Ark.  232;  Haile        6  Morris  v.  Banner,  7  Pet.  554. 

v.  Palmer,  5  Mo.  403.  7  Huet    v.  Le   Mesurier,   1    Cox   Eq. 

2  Walker  v.  Wingfield,  18  Ves.  443;  275;  Burghart  v.  Angerstein,  6  Carr.  & 
Doe  v.  Bray,  8  Barn.  &  Cres.  813.  P.  690. 

3  Farr  v.  Swan,  2  Pa.  St.  245;  Owen  8  Bain    v.   Mason,  1  Carr.  &   P.  202 
v.  Boyle,  3  Shepl.  147.  Birt  v.  Barlow,  1  Dougl.  171. 

4  Doe  v.  Barnes,  1  M.  &  Rob.  386.  9  Wedgwood  case,  8  Greenl.  (Me.)  75. 

5  Clark  v.   Trinity  Church,   5  Watts 
&  S.   266;  Rex  v.   North  Petherton,  5 
Barn.  &  Cres.  508. 


216  THE  LAW  OF  IDENTIFICATION. 

ister  of  births,  marriages  and  burials  are  competent  evidence  on  a  trial 
to  prove  pedigree  ;  and  where  the  original  is  of  a  public  nature  (e.  g., 
the  records  of  the  Reformed  Dutch  Church  in  the  city  of  New  York), 
a  copy  from  the  record,  sworn  to  by  the  proper  custodian  of  such 
record,  was  held  to  be  admissible  in  evidence.  Hearsay  in  the  family, 
and  among  relations,  traditions,  and  any  thing  which  shows  a  general 
reputation,  is  also  admissible  to  establish  pedigree.  Producing  letters- 
patent  to  one,  and  then  tracing  a  descent  from  one  of  the  same  name, 
are  prima facie  evidence  that  the  patentee  and  the  ancestor  are  one 
and  the  same  person,  and  it  then  lies  with  the  defendant  to  rebut  or 
overcome  this,  by  showing  another  of  corresponding  name,  age,  etc., 
or  in  some  other  legal  way.1 

Same  —  ejectment  —  agent  —  correspondence. 

§  304.  In  an  action  of  ejectment  in  New  York,  decided  in  1811, 
the  lessors  of  the  plaintiff  resided  in  England,  and  claimed  to  be 
heirs  of  the  person  who  died  seized  of  the  land  in  question,  the  re- 
covery of  which  was  sought  by  the  action.  A  witness  here  deposed 
that  he  knew  the  ancestor,  and  had  charge  of  the  land  as  his  agent, 
and  corresponded  with  him,  and,  after  his  death,  with  the  lessor,  who 
sent  him  a  power  to  act  for  him,  as  heir  and  devisee,  and  that  his  in- 
formation was  also  derived  from  persons  acquainted  with  the  family 
of  the  lessors.  It  was  held  that  this  was  sufficient  evidence,  prima 
facie,  of  pedigree  and  heirship,  in  the  lessors,  to  go  to  the  jury,  for 
their  consideration.  Hearsay  evidence  is  sufficient  to  prove  pedigree 
or  heirship.  .  And  it  was  also  held  that  the  acknowledgment  of  a  deed 
from  persons  describing  themselves  as  heirs,  taken  according  to  the 
directions  of  an  act,  before  the  mayor  of  London,  is  also  a  circum- 
tance  of  weight  in  evidence  of  pedigree,  but  this,  of  itself,  would 
perhaps  be  insufficient.2 

Same  —  declarations  —  documents  —  land  titles. 

§  305.  In  an  English  case  decided  in  1771,  it  was  held  that  general 
declarations,  or  the  answer  of  a  parent  in  chancery,  were  good  evi- 
dence, after  the  death  of  such  parent,  to  prove  that  a  child  was  born 
before  marriage,  but  not  to  prove  that  a  child  born  in  wedlock  was 
a  bastard.3  In  speaking  of  these  general  declarations  as  evidence, 
Lord  KENYON  said :  "  I  admit  that  declarations  of  members  of  a 
family,  and  perhaps  of  others  living  in  habits  of  intimacy  with  them, 

1  Jackson  v.  King,  5  Cow.  237.  *  Goodriffht  v.  Moss,  Cowp.  591. 

•Jackson  v.  Cooley,  8  Johns.  128. 


ANCIENT  RECORDS  AND  DOCUMENTS.  217 

are  received  in  evidence  as  to  pedigrees ;  bat  evidence  of  what  a  mere 
stranger  lias  said  has  ever  been  rejected  in  such  cases."1  Where  a 
person  who  has  no  title  to  real  property  makes  a  conveyance  of  the 
same  to  another  with  the  general  covenants  of  warranty,  and  sub- 
sequently acquires  title  thereto,  his  title  inures  to,  and  vests  in,  his 
grantee,  by  operation  of  law,  in  discharge  of  his  covenants.  Parties 
in  successive  deeds  of  conveyance,  constituting  a  chain  of  title,  of  the 
same  name,  are  presumptively  the  same  persons ;  and,  in  this  country, 
there  is  no  intend ment  that  a  party  in  twenty  years  may  not  change 
his  residence,  and  a  deed  from  Elijah  Gore  of  Halifax,  to  Elijah 
Gore,  Jr.,  of  Halifax,  was  presumed  to  be  from  father  to  son,  they 
being  both  of  that  name.2  It  was  held  that  the  presumption  "  omnia, 
rite  essa  acta"  would  justify  the  court  in  treating  as  genuine,  a 
paper  purporting  to  be  an  answer,  and  found  among  the  papers  of  the 
suit,  although  there  is  no  indorsement  of  the  filing  thereof  by  the 
clerk,  in  the  absence  of  proof  to  the  contrary.  But  the  testimony  of 
one  of  the  members  of  the  firm,  whose  signature  was  attached  to  the 
answer,  shows  that  he  wrote  the  answer  and  he  thought  it  was  filed, 
and  that  the  outside  page  of  the  double  sheet  was  torn  off.3 

Of  child.  —  legacy  —  necessary  evidence. 

§  306.  Where  a  legacy  was  left  to  a  certain  child,  and  the  ques- 
tion was  whether  he  survived  the  ancestor,  and  whether  a  certain 
person  who  did  survive  her,  and  who  was  claimed  to  be  the  legatee, 
was  in  fact  so.  On  the  question  of  identity,  it  was  held  admissible 
to  show  the  name  such  person  bore,  his  personal  appearance  and  con- 
versation, and  the  account  he  gives  of  himself,  his  family  connec- 
tions and  associations.  Identity  of  person  may  be  proved  by  the 
concurrence  of  several  characteristics.  The  tendency  of  the  courts  is 
to  relieve  parties  from  the  onus  of  proving  identity,  it  being,  as  a 
general  rule,  more  easily  disproved  than  established.4  The  question 
of  identity  is  a  fact  for  the  jury,  and  the  court  cannot  presume  the 
identity  of  a  person.5  But  the  proof  of  the  name  will  raise  the  pre- 
sumption. 

Church  register  —  day-book  —  evidence. 

§  307.  In  a  New  York  case,  decided  in  1853,  which  was  an  action 
to  recover  dower  in  the  premises  described,  as  the  widow  of  one 

1  Rex  v.  Inhab.  ofEriswell,  3T.R.723.  4  Mullery  v.   Hamilton,   71   Ga.    730 

*  Cross  v.  Martin,  46  Vt.  14.  (1883). 

8Boyd  v.  Wyley,  18  Fed.  Rep.  356.  8  Ellsworth  v.  Moore,  5  Iowa,  486. 
28 


218  THE  LAW  OF  IDENTIFICATION. 

Maxwell,  defendant  denied  that  the  plaintiff  was  the  widow  of  Max- 
well, or  that  he  ever  was  her  husband.  To  identify  the  plaintiff  as 
the  widow  of  Maxwell,  the  church  record  was  produced  to  show  the 
marriage.  The  court  said:  "The  second  ground  of  objection  is 
founded  on  an  erroneous  view  of  the  law.  Dr.  Berrian  testified  that 
'  since  he  had  been  rector  of  the  church,  it  had  been  the  practice  for 
each  minister  of  the  parish  to  keep  an  account  of  the  marriages  sol- 
emnized by  him,  in  a  book  kept  by  himself,  as  the  marriages  occur 
or  soon  after.  The  minister  handed  in  the  marriages  on  a  slip 
of  paper  and  I  entered  them  in  the  book  when  at  leisure.'  And 
that  he  '  entered  all  the  marriages  solemnized  by  himself  and  his  assist- 
ants, in  the  same  book  or  marriage  register.  Cannot  say  what  was 
the  practice  of  Bishop  Provost.'  There  are  two  answers  to  the  ob- 
jection :  1.  There  is  not  a  particle  of  evidence  to  show  that  this  practice 
prevailed  when  Eve  Maxwell  was  married.  2.  If  it  did,  the  reg- 
ister only,  and  not  the  original  book  of  entry,  is  admissible  in  evi- 
dence. Mr.  Starkie,  in  his  treatise  on  Evidence  (part  2,  §  50,  p. 
715),  when  treating  of  public  registers  of  births,  marriages  and 
burials,  lays  down  the  rule  in  the  following  language :  '  Although 
the  entries  are  first  made  in  a  day-book,  such  day-book  is  not  evidence 
when  the  entry  has  been  in  a  register.'  See,  also,  to  the  same  effect, 
2  Phil.  Ev.  (3d  Am.  ed.)  112.  The  objection,  therefore,  is  not  well 
taken.  The  third  ground  of  objection  assumes  that  the  register  is 
only  evidence  of  pedigree  in  any  case.  This  cannot  be  so.  It  is  laid 
down  in  Greenleaf  (vol.  1,  §  493),  that  a  register  of  a  marriage  is 
evidence  of  the  fact  of  the  marriage,  and  of  the  time  when  it  was 
solemnized."1 

Children  —  when  legitimate  —  proof  of  marriage. 

§  308.  An  important  case  from  Maryland  was  decided  by  the  Su- 
preme Court  of  the  United  States  in  1865.  Dr.  Crawford  died  in 
Maryland  intestate,  in  1859.  He  left  a  large  estate,  but  left  no 
widow  or  children,  and  no  brothers  or  sisters  surviving  him.  Claim- 
ants to  his  estate,  however,  as  usual  in  such  cases,  were  not  long 
wanting ;  relations  on  the  one  hand  by  the  name  of  Blackburn,  and  on 
the  other  hand,  the  Crawford  family  —  four  children  of  his  brother, 
Thomas  B.,  who  had  died  before  him.  They  being  nephews  and 
nieces,  were  nearer  of  course  than  the  Blackburns,  who  were  only 
cousins,  but  for  one  difficulty  —  their  legitimacy  was  called  into 
1  Maxwell  v.  Chapman,  8  Barb.  579. 


ANCIENT  RECORDS  AND  DOCUMENTS.  219 

question.  It  was  alleged  that  their  mother  had  been  the  mistress 
and  not  the  wife  of  their  father.  The  intercourse  of  the  parties  had, 
confessedly,  in  its  origin  been  irregular  ;  but  the  allegation  was,  that 
a  marriage  had  subsequently  taken  place.  The  family  name  of  the 
mother  was  Elizabeth  Taylor.  In  May,  1860,  Mr.  Crawford  being 
dead,  she  gave  under  oath,  in  a  judicial  proceeding,  her  own  account 
of  her  relations  with  him  ;  in  which,  among  many  other  things,  she 
stated,  they  were  married  at  St.  Patrick's  Church  in  Washington  city 
by  Rev.  Mr.  Fiziac,  in  the  presence  of  her  sister,  Mrs.  Evans,  and  her 
brother,  Samuel  Taylor,  both  of  whom  were  then  dead ;  that  the 
marriage  was  kept  secret  on  account  of  Dr.  Crawford's  opposition 
to  it ;  that  two  of  her  children,  George  and  Yictoria,  were  born 
after  this  marriage,  and  that  after  this  marriage  they  lived  together 
as  husband  and  wife,  until  his  death.  A  jury  in  Maryland  found 
specially  that  there  had  never  been  a  lawful  marriage  of  the  parties, 
etc.,  and  letters  of  administration  were  granted  to  Blackburn. 
The  deposition  of  the  priest,  Fiziac,  was  taken  in  France.  He 
had  no  memorandum  or  register  of  the  marriage,  nor  any  recollection 
of  it ;  but  said  he  never  married  parties  without  a  license.  It  was 
held  that  a  marriage  in  the  District  of  Columbia,  if  celebrated  by  a 
clergyman  in  facie  ecclesice,  was  not  invalid  for  want  of  a  marriage 
license  ;  that  if  parties  having  had  children  in  concubinage,  marry 
and  after  the  marriage  recognize  and  treat  such  children  as  heirs, 
such  children  by  the  laws  of  Maryland  are  regarded  as  legitimate ; 
that  although  parties  had  lived  long  together,  and  a  marriage  had 
been  sworn  to  and  the  circumstances  particularly  described  by  one  of 
the  parties,  and  other  witnesses  have  testified  to  facts  indicative  of 
wedlock  as  distinguished  from  concubinage,  still  the  jury  may  find, 
on  counter-evidence,  that  the  cohabitation  during  the  whole  time 
was  illicit.  It  was  further  held  that  it  was  error  in  the  trial  court  to 
charge  the  jury,  that "  if  a  man  and  woman  live  together  as  husband 
and  wife,  and  the  man  acknowledges  the  woman  as  his  wife,  and 
always  treats  her  as  such,  and  acknowledges  and  treats  the  chil- 
dren which  she  bore  him  as  his  children,  and  permits  them  to  be 
called  by  his  name,  then  the  presumption  of  law  is  in  favor  of  their 
legitimacy."  The  question  of  legitimacy  under  such  circumstan- 
ces is  a  question  for  the  jury,  the  law  making  no  presumption 
about  it.1 

1  Blackburn  v.  Crawford,  3  Wall.  176,  189. 


THE  LAW  OF  IDENTIFICATION. 

Church  records  —  evidence  of  pedigree. 

§  309.  The  rule  on  the  subject  of  proof  by  a  church  register  in 
Missouri  seems  to  be  a  little  peculiar.  It  was  held  that  church  reg- 
isters were  not  admissible  in  evidence,  except  by  special  statute,  un- 
less they  are,  by  the  civil  law  of  the  country  or  state  where  kept, 
recognized  as  documents  of  an  authentic  or  public  nature  ;  and  that 
recitals  in  such  registers  are  not  admissible  as  evidence  of  pedigree.1 
And  that  a  child's  baptism  as  shown  by  a  church  register  is  not  evi- 
dence of  his  birth,  or  of  his  identity,  nor  evidence  at  all,  unless  the 
law  requires  the  register  to  be  kept.2  But  in  England  there  is  a 
different  rule,  to  the  effect  that  the  certificate  of  births,  baptisms, 
marriages  and  deaths  are  admissible  in  evidence,  without  proof  of 
the  identity  of  the  person  mentioned  in  them  with  the  person  as  to 
whom  the  fact  recorded  by  them  is  sought  to  be  established.3  And 
this,  in  fact,  seems  to  be  the  rule  both  in  England  and  in  this 
country. 

Identity  of  parties  to  actions. 

§  310.  Identity  is  a  quality  or  state  of  being  identical,  the  same, 
or  a  sameness,  or  as  given  by  Webster,  the  condition  of  being  the 
same  with  something  described  or  asserted,  or  of  possessing  a  char- 
acter claimed.  And  it  has  been  very  generally  held  by  the  courts 
of  this  country,  that  when  the  question  refers  merely  to  the  identity 
of  the  person,  the  name  raises  a  presumption  of  the  identity  of 
the  person,  and  is  prima  facie  evidence  that  the  party  is  the  same, 
when  it  is  shown  that  the  party  bears  the  same  name  as  the  party  to 
the  action  or  the  party  sought  to  be  affected.  But  the  identity  of 
the  person,  when  that  is  in  question,  is  an  inference  to  be  drawn  from 
facts,  latent  or  patent,  and  varied  by  the  circumstances  which 
may  surround  the  case.4  And,  like  all  other  legal  presumptions,  may 
be  rebutted  or  overcome  by  the  circumstances  surrounding  the  case, 
though  in  the  absence  of  some  sufficient  evidence  to  raise  a  doubt  of 
the  identity,  the  fact  of  the  mere  name  has  been  held  sufficient  to 
identify  the  party.  In  an  action  of  ejectment  to  recover  nine-six- 
teenths (-j^)  of  a  certain  tract  of  land,  the  claim  on  both  sides  de- 
pended ultimately  upon  the  will  of  one  Peter  Goodell,  by  which  he 

1  Childress  v.  Cutter,  16  Mo.  25.  5  Cow.  237-241;  Maxwell  v.  Chapman, 

9  Morrissey  v.  Wiggins  Ferry  Co. ,  47  8  Barb.  579;  Kingston  v.  Lesley,  10 

Mo.  521.  Serg.  &  R.  383;  Blackburn  v.  Crawford, 

1  Sayer  v.  Qlossop,  2  Excb.  409;  Hub-  3  Wall.  189. 

bard  v.  Lees,  L.  R.,  1  id.  255;  Jackson        «  Whart.  Cr.  Ev.,  §§  13,  803,  note  6; 

v.  Boneham,   15  Johns.   226;  Hyam  v.  id.,  §§  378,  807. 

Edwards,  1  Dallas,  2 ;  Jackson  v.  King, 


ANCIENT  RECORDS  AND  DOCUMENTS.  221 

gave  to  his  brother  twenty-five  acres  of  the  north  portion  of  the  land 
in  question,  and  if  he  died  without  heirs,  to  go  to  his  sister  Betsey, 
and  the  remainder  of  his  estate  to  his  said  sister,  she  to  support 
the  testator's  mother  during  her  life,  and  if  the  sister  died  without 
heirs,  her  part  to  go  to  his  five  brothers.  Plaintiff  claimed  under 
Frank  Goodell  who,  it  was  insisted,  was  a  son  of  Alexander,  a 
brother  of  the  testator.  The  proof  of  the  name  was  the  only  evi- 
dence of  identity.  This  was  held  sufficient.1 

Ejectment  —  burden  of  proof. 

§  311.  An  action  of  ejectment  was  brought  to  recover  real  estate 
in  New  Madrid,  in  Missouri.  It  was  located  in  the  name  of  one 
Nathaniel  Shaver.  The  decree  in  the  chancery  court  was  against 
the  unknown  heirs  of  said  Shaver.  Under  this  the  defendant  claimed 
title.  Shaver  in  his  life-time  had  transferred  his  certificate  of  loca- 
tion to  George  Ballinger,  from  whom  Beverly  Allen  derived  title. 
Allen  sued  and  obtained  a  decree  in  1835,  and  prior  to  a  conveyance 
by  Shaver's  heirs  to  the  plaintiff.  Both  parties  claimed  under  Shaver, 
and  it  was  held  that  if  there  was  a  want  of  identity  of  the  person 
Shaver,  the  burden  of  showing  it  was  on  the  plaintiff.  That  the 
names  being  identical,  prima  facie  they  were  the  same  person,  and 
that  it  rested  with  the  plaintiff  to  show  that  they  were  not.  That 
the  name  being  identical  raises  the  presumptive  evidence  that  the 
party  is  the  same,  and  this  presumption  will  stand  unless  overthrown 
by  other  testimony.2 

Same  —  ancient  documents  —  wills  —  deeds. 

§  31 2.  A  recent  case  of  some  importance  was  decided  in  Pennsyl- 
vania. Ejectment  was  brought  by  Gehr  against  Sitler.  It  was  held 
that  the  rule  to  which  we  have  referred,  *.  <?.,  that  identity  of  name  is 
prima  facie  evidence  of  the  identity  of  the  person,  is  not  good  where 
the  transactions  are  remote  ;  that  a  mortgage  executed  one  hundred 
and  forty  (140)  years  prior  to  the  bringing  of  the  suit  by  a  person  of 
a  certain  name  is  inadmissible  in  evidence  to  prove  that  a  certain 
person  of  that  name  then  resided  in  the  locality  of  the  land  upon 
which  the  mortgage  was  given,  in  the  absence  of  evidence  to  estab- 
lish identity  ;  and  that  on  questions  of  pedigree,  ancient  wills,  deeds 
mortgages  and  other  documents  executed  by  parties  having  the  same 
name  as  the  parties  to  the  suit,  in  the  absence  of  continuing  recitals 

1  Goodell  v.  Hibbard,  32  Mich.  48  2  Gitt  v.  Watson,  18  Mo.  274.  Citing 
(1875).  Flournoy  v.  Warden,  17  id.  435. 


THE  LAW  OF  IDENTIFICATION. 

as  to  relationship,  are  inadmissible  in  evidence,  in  the  absence  of 
proof  that  the  parties  who  executed  them  were  relations  of  the  parties 
to  the  suit.1 

Same  —  holding  under  sheriff's  deed  —  name. 

§  313.  Where,  in  an  action  of  ejectment  by  the  grantee  in  a  sheriff's 
deed,  the  evidence  showed  that  the  judgment  under  which  the  sheriff 
sold  was  rendered  in  favor  of  one  "  Mariah  H.  Mather,"  but  the  deed 
recited  that  it  was  in  favor  of  "  Mariah  Mathews,"  it  was  held  inad- 
missible, as  the  names  were  not  idem  aonans.  But  the  court  said  : 
"  It  matters  not  how  two  names  are  spelled,  what  their  orthography 
is ;  they  are  idem  sonans  within  the  meaning  of  the  books,  if  the  at- 
tentive ear  finds  difficulty  in  distinguishing  them  when  pronounced, 
or  common  and  long-continued  usage  has  by  corruption  or  abbrevia- 
tion made  them  identical  in  their  pronunciation."2 

Married  woman  —  deed  to  land  —  in  former  name. 

§  314.  In  an  action  brought  in  Texas  to  recover  a  certain  tract  of 
two  hundred  and  five  acres  of  land,  it  appeared  that  the  land  had 
been  conveyed  to  Mary  A.  Rudicil,  the  wife  of  W.  A.  Rudicil.  She 
for  the  purpose  of  enabling  her  son,  J.  A.  Rudicil,  to  sell  it,  and  for 
no  other  consideration,  made  him  a  deed  of  the  land.  Subsequently 
she  married  one  J.  Schoon maker ;  and  still  subsequently  to  such  mar. 
riage,  the  son  recoriveyed  the  land  to  his  mother,  in  her  former  name 
of  Rudicil)  instead  of  her  then  name  of  Schoon  maker.  This  deed 
was  not  recorded  until  half-past  twelve,  A.  M.,  on  February  5,  1884:. 
Appellant  held  a  note  for  $50,  against  J.  A.  Rudicil  and  Mary  A. 
Rudicil,  payable  to  McGregor  and  Lott,  and  indorsed  by  them.  A 
judgment  was  recovered  thereon  against  J.  A.  Rudicil  and  Mary  A- 
Schoonmaker,  and  her  husband,  John  Schoonmaker ;  and  execution 
was  levied  on  the  land  as  the  property  of  J.  A.  Rudicil,  and  the  land 
was  sold,  and  Wilkinson  became  the  purchaser  and  took  a  deed.  It 
was  held  that  a  deed  made  to  a  married  woman  by  her  name  previous 
to  marriage,  where  her  identity  as  the  same  person  is  shown,  is  valid 
to  convey  the  land.3 

Evidence  of  identity  —  exceptions  to  general  rules. 
§  315.  In  England,  at  a  provisional  meeting  of  a  committee  of  a 

1  Sitler  v.  Gehr,  105  Pa.  St.  577.  v.  Merry,  9  id.  514;  State  v.  Curran,  18 

9  Robson     v.   Thomas,    55   Mo.    582.  id.  320. 

Citing  State  v.  Havely,  21  id.  498;  Cato        3  Wilkerson  v.  Schoonmaker,  77  Tex. 

v.  Hutson,  7  id.  142.  And  see  Alexander  615. 


ANCIENT  RECORDS  AND  DOCUMENTS,  223 

railroad  company,  the  plaintiff  was  appointed  engineer  of  the  rail- 
road company.  Previous  to  this  the  defendant  had  agreed  to  join 
the  committee,  and  had  forwarded  applications  for  shares,  but 
whether  before  or  after  the  meeting  was  left  in  doubt.  An  individ- 
ual answering  to  the  defendant's  name  was  present  at  the  meeting, 
and  visited  the  office  of  the  company.  It  was  held  that  there  was 
no  evidence  of  the  identity  of  the  defendant  with  that  individual.1 
But  the  general  rule  in  this  country  is,  as  stated  in  Michigan,  that, 
"  In  the  absence  of  circumstances  to  cast  doubt  upon  the  fact  of 
identity,  the  identity  of  name  is  enough  to  raise  the  presumption  of 
identity  of  person.2  Upon  the  proof  of  identity  Mr.  "Wharton  says: 
"  But  questions  of  identity  are  an  exception  to  the  general  rule, 
which  is,  that  evidence  of  habit  is  inadmissible  for  the  purpose  of 
showing  that  a  particular  person  did  or  did  not  do  a  particular  thing."3 
And  questions  of  identity  are  an  exception  to  another  important  and 
well-recognized  rule  of  evidence,  which  is,  that  the  opinions  of  non- 
expert witnesses  are  inadmissible  in  evidence  to  go  to  the  jury,  upon 
the  trial  of  any  question  of  fact.4 

Identity  of  ancestor  —  claim,  of  land. 

§  316.  A  judgment  will  not  be  reversed,  it  was  held,  for  want  of 
identity  of  the  ancestor  of  the  party,  who  died  in  another  State,  with 
a  person  of  the  same  name,  to  whom  a  deed  was  made  about  the 
time  the  ancestor  was  in  the  State  where  the  deed  was  made,  when 
the  question  of  identity  was  first  raised  on  appeal.  And  so  in  Texas 
in  1889,  in  an  action  brought  to  recover  one  hundred  and  twenty- 
five  acres  of  land,  part  of  a  larger  grant,  the  plaintiffs  showed  that 
Daniel  J.  Adonis  acquired  title  to  the  land  in  1858,  through  a  reg- 
ular chain  of  title  from  the  sovereignty  of  the  soil ;  and  further, 
that  a  person  of  that  name  died  in  West  Virginia  in  1886,  having 
lived  there  for  many  years.  They  further  showed  that  Daniel  J. 
Adonis,  through  whom  they  claim,  was  in  Texas  about  the  time  the 
deed  to  a  person  of  that  name  was  made.  There  was  no  evidence 
tending  to  show  that  the  person  to  whom  the  deed  was  made  was  not 
the  same  person  through  whom  they  claimed,  nor  was  there  any 
question  of  identity  raised  in  the  court  below ;  but  it  was  insisted  on 
appeal  that  the  judgment  ought  to  be  reversed  for  want  of  further 
proof  of  identity.  But  the  judgment  was  affirmed.  The  court  held 

1  Giles  v.  Cornfoot,  2  Car.  &Kirw.  653.        4  Hallalian  v.  R.  Co.,  102  N.  Y.  194; 
sGoodell  v.  Hibbard.  32  Mich.  48.  Com.  v.  Pope,  103  Mass.  440. 

3  2  Whart.  Ev.,  §1287. 


224:  THE  LAW  OF  IDENTIFICATION. 

that  the  sufficiency  of  proof  as  to  the  identity  of  the  intestate  with 
the  grantor  named  in  the  deed  could  not  be  raised  for  the  first  time 
on  appeal.1 

Judgment  docket — names — rule  in  Pennsylvania. 

§  317.  A  party  purchased  land  from  the  grantors,  who  sold  to  him 
as  "John  Bubb"  and  wife,  and  paid  off  two  judgments  as  part  of 
the  purchase-money.  These  judgments  were  entered  on  the  docket 
as  against  "John  Bubb."  He  was  thereafter  served  with  a  scLfa. 
on  a  judgment  against  John  JBobb,  which  he  resisted  upon  the  ground 
that  it  was  not  a  lien  upon  the  property  which  he  had  purchased 
from  "  John  Bubb  "  and  wife.  But  it  was  held  that  the  variance  in 
the  name  was  immaterial,  both  forms  having  the  same  sound  in  the 
German  counties,  and  that  the  judgment  was  a  lien  upon  the  land  so 
purchased.  LOWEIE,  C.  J.,  said :  "  Courts  cannot  administer  justice 
properly  by  a  strict  adherence  to  general  customs,  and  by  overlooking 
the  modifications  or  limitations  of  those  by  special  usage  and  customs- 
Even  the  language  of  a  people,  usually  the  most  universal  of  its  cus- 
toms, is  subject  to  local  differences,  which  must  be  respected  in  the 
ascertainment  of  rights.  The  language  spoken  in  some  of  the  old 
German  parts  of  this  State  is  a  special  custom  of  this  sort.  It  is 
neither  correct  German,  nor  correct  English,  and  yet  it  is  the  means 
of  verbal  intercourse  among  a  very  large  portion  of  our  people.  It 
has  norma  loquendi  of  its  own,  and  is  not  to  be  tested  by  the  rules 
of  either  good  German  or  good  English.  In  its  vowels  and  in  its 
consonant  sounds,  it  differs  from  both ;  and  of  course  this  difference 
shows  itself  in  the  spelling  of  the  names  of  persons.  Bubb  is  the 
name  here,  as  the  party  owning  it  spells  it,  but  in  the  judgment  docket, 
it  is  in  this  case  written  Bobb.  According  to  our  German  mode  of 
pronunciation  prevailingin  Lancaster  county,  the  sound  of  both  forms 
are  identical,  and  the  latter  from  the  spelling  is  doubtless  the  most 
used  in  analogous  cases ;  as  in  that  of  '  Pott,'  pronounced  '  Putt,' 
and  as  in  other  instances  given  by  the  learned  judge  of  the  Common 
Pleas.  We  cannot  disregard  such  anomalies  without  doing  great 
injustice ;  and  people  having  relations  with  them,  in  the  localities 
where  they  prevail,  are  bound  to  take  notice  of  them.  Persons 
searching  the  judgment  docket  for  liens  ought  to  know  the  different 
forms  in  which  the  same  name  may  be  spelled  and  to  make  their 
searches  accordingly;  unless,  indeed,  where  the  spelling  is  so  entirely 
1  Holstein  v.  Adams,  72  Tex.  485. 


ANCIENT  RECORDS  AND  DOCUMENTS.  225 

unusual  that  persons  cannot  be  expected  to  think  of  it.  It  may  be 
well  to  notice,  however,  that  since,  in  modern  days,  the  surname  has 
been  the  principal  name  instead  of  the  Christian  name,  and  since  sur- 
names have  become  comparatively  well  settled,  we  could  hardly  allow 
the  same  variety  in  spelling  these  as  was  allowed  in  more  ancient 
times,  when  Sanders,  Sanderson,  Allison  and  Ellison  might  have  all 
been  treated  as  one  name,  '  Allexanderson.'  After  the  learned  dis- 
cussion of  the  subject  by  the  judge  of  the  Common  Pleas  in  his 
opinion,  it  seems  to  us  these  remarks  are  stiff  cient  for  the  case."1 

Same  —  idem  sonans  —  judgment  liens. 

§  318.  In  Pennsylvania  one  man  was  given  three  names.  Nicho- 
las Heil  and  C.  F.  Lauer  obtained  a  judgment  in  the  District  Court 
of  Allegheny  county  in  April,  1859,  against  George  P.  Joest,  an  ex- 
emplification of  which  was  entered  in  Westmoreland  county,  July  9, 
1859.  Before  this  was  entered  in  that  county,  there  were  judgments 
obtained  against  the  same  person,  but  the  nanle  was  spelled  "  Yoest" 
There  were  also  judgments  entered  in  Westmoreland  county,  subse- 
quent to  the  judgment  of  Heil  and  Lauer  —  one  in  favor  of  Lightner 
v.  George  P.  Yeust,  and  two  in  favor  of  Fahnestock  v.  George  P. 
Yosst.  These  judgments  were  all  against  the  same  man,  but  in  each 
case  the  name  was  spelled  differently.  Defendant's  real  estate  in  West- 
moreland county  was  sold,  and  John  Armstrong  was  appointed  auditor 
to  distribute  the  funds,  $800,  then  in  court.  The  court  disposed  of 
the  case  thus :  "  We  think  the  auditor  and  the  court  below  were  right 
in  refusing  to  permit  the  judgment  of  the  appellants  to  participate 
in  the  distribution  of  the  money  in  court.  The  fund  was  raised 
out  of  the  sale  of  the  real  estate  of  George  P.  Yoest,  and  the  judgment 
of  the  appellants  was  entered  against  George  P.  Joest.  It  is  true  that 
George  P.  Yoest  and  George  P.  Joest  are  the  same  person,  and  that 
in  the  German  language  the  letters  "  Y  "  and  "  J  "  are  pronounced 
alike.  But  in  the  distribution  of  the  proceeds  of  a  sheriff's  sale, 
beside  the  question  of  identity  of  the  debtor,  there  is  one  of  record 
notice.  Upon  this  second  question  no  light  is  thrown  by  the  fact 
that  the  name  of  the  debtor,  though  spelled  with  different  capitals,  is 
the  same  in  sound.  The  Act  of  Assembly,  which  requires  that  judg- 
ment dockets  and  indexes  shall  be  kept,  provides  for  notice  to  the  eye, 
not  to  the  ear.  It  contemplates  that  the  docket  shall  be  kept  in  Eng- 
lish, and  it  does  not  impose  upon  any  one  who  searches,  the  duty  of 

1  Myer  v.  Fegaly,  39  Pa.  St.  429. 
29 


226  THE  LAW  OF  IDENTIFICATION. 

inquiring  whether  some  other  letters  may  not  spell  the  name  of  the 
debtor  in  another  language.  It  was  the  duty  of  the  appellants  to  see 
that  their  judgment  was  properly  entered  :  Wood  v.  Reynolds,  7  W.  & 
S.  406;  entered  so  as  to  furnish  to  the  eye  of  purchasers  and  subsequent 
incumbrancers  that  record  notice  which  the  Act  of  Assembly  contem- 
plates. We  do  not  think  that  the  legislature  intended  that  a  pur- 
chaser or  incumbrancer,  in  searching  for  a  name,  the  initial  letter  of 
which  is  "Y,"  should  be  under  obligation  to  examine  the  index 
through  the  letters  of  "  Y  "  and  "  J."  "We  must  so  hold,  or  the 
judgment  dockets  and  indexes  would  be  shorn  of  their  value,  and  the 
statutory  purpose  defeated.  There  are  many  sounds  in  our  language 
which  are  indicated  by  different  letters  in  other  languages.  This  is 
true  both  of  vowels  and  consonants.  Thus,  in  the  Spanish  language 
the  initial  J  has  the  sound  of  H.  Must  the  purchaser  search  under 
the  letters  "J"  and  "H?"1 

Judgment  —  defective  entry  —  effect  —  notice. 

§  319.  Under  the  statutes  of  Pennsylvania,  it  was  held  that  a  judg- 
ment against  a  partnership  firm,  docketed  without  setting  forth  the 
Christian  names  of  the  several  individual  members  of  the  firm,  was 
not  effective  as  a  lien  on  the  property  of  the  firm,  so  far 
as  it  may  affect  subsequent  bona  fide  purchasers  or  incumbrancers. 
But  if  such  subsequent  purchasers  or  incumbrancers  have  actual 
notice  of  the  judgment,  so  defectively  entered,  before  their  rights 
attach  to  the  property,  it  will  be  equivalent  to  the  constructive  no- 
tice required  by  law,  to  be  given  by  the  docket  entry  of  the  judg- 
ment. But  between  the  immediate  parties  to  the  record  in  the 
action  in  which  the  judgment  was  rendered,  the  entry  on  the  judg- 
ment docket  or  roll  is  unnecessary  to  create  the  lien  on  the  defend- 
ant's real  property.  These  statutes  requiring  entries  of  judgments 
on  a  docket  or  roll  to  be  kept  for  that  purpose,  were  estabh'shed 
for  the  same  purpose  for  which  records  of  deeds,  mortgages,  deeds 
of  trust  and  wills  were  provided,  that  is,  to  be  a  notice  to  purchasers, 
incumbrancers  and  others  requiring  rights  in  real  estate.2 

Same  —  purchaser  or  incumbrancer. 

§  320.  A  judgment  entry  required  by  statute,  when  defective,  as 
we  have  seen,  may  be  remedied  by  actual  personal  notice  to  subse- 

1  Heil  &  Lauer's  Appeal,  40  Pa.  St.  And  see  Ridgway's  Appeal,  15  Pa.  St. 
453.  177. 

*  York  Bank's  Appeal,  86  Pa.  St.  458. 


ANCIENT  RECOBDS  AND  DOCUMENTS.  227 

<quent  lien  creditors,  of  the  actual  existence  of  the  judgment.  And 
it  has  been  held  that  a  judgment  entered  and  indexed  in  such  docket 
in  the  name  of  a  firm,  and  not  in  the  names  of  the  individuals  who 
compose  the  firm,  will  be  postponed  to  the  claim  of  a  subsequent 
lien  creditor,  without  notice,  whose-  judgment  is  properly  indexed 
in  the  names  of  the  several  partners  who  compose  the  firm.1  A  sub- 
sequent purchaser,  incumbrancer,  or  judgment  creditor  is  not  bound 
to  look  beyond  the  jugdment  docket.  If  the  Christian  name  of  the 
defendant  or  defendants  in  the  judgment  is  not  entered  in  the  judg- 
ment docket,  the  judgment,  though  valid  as  between  the  immediate 
parties,  cannot  affect  subsequent  purchasers  or  judgment  creditors. 
It  is  the  duty  of  the  judgment  creditor  to  see  that  his  judgment  is 
properly  entered  on  the  judgment  docket.2  A  valid  judgment  lien 
upon  real  estate,  which  is  a  notice,  will  follow  the  property,  not  only 
into  the  hands  of  the  first  purchaser,  but  into  the  hands  of  any  sec- 
ond, sub,  or  remote  vendee,  who  is  charged  with  notice  of  such 
lien. 

Judgment  —  indexing  —  when  is  not  docketing. 

§  321.  Suits  were  brought  in  equity,  one  by  Clark  and  "Woodward, 
partners,  and  the  other  by  T.  J.  Jones  and  Thos.  Knapp,  late  part- 
ners, to  subject  real  estate  to  sale  to  satisfy  their  judgments  against 
D.  B.  Bridgford  and  N.  F.  Pate,  partners,  under  the  firm  name  of 
Bridgford  &  Co.  The  judgments  were  properly  entered  by  the 
clerk  in  the  body  of  the  judgment  docket,  but  were  not  indexed  in 
the  name  of  Pate,  but  merely  in  the  name  of  Bridgford  &  Co.  Sub- 
sequently Pate  sold  his  land  to  O.,  who  had  no  knowledge  of  C.'s 
judgment.  On  bill  filed  by  C.  to  subject  the  lands  in  the  hands  of 
O.  to  the  lien  of  the  judgment,  it  was  held  that  indexing  was  not  a 
part  of  the  docketing,  and  that  the  land  was,  therefore,  subject  to  the 
lien  of  C.'s  judgment,  and  the  decree  of  sale  thereof  was  granted.3 
This  was  the  rule  in  Virginia. 

Same  —  index  —  rule  in  Nebraska. 

§  322.  Under  the  statute  of  Nebraska,  as  between  judgment 
debtor  and  creditor,  a  judgment  which  is  valid  becomes  a  lien  on 
realty  without  indexing,  but  it  does  not  become  a  lien  on  realty,  as 
against  subsequent  purchasers  without  notice,  until  properly  indexed, 

1  Hamilton's   Appeal,  103  Pa.  St.  368.     Bear  v.  Patterson,  3  W.  &  S.  (Pa.)  233; 
And  see  Smith's  Appeal,  47  id.  128.  Mehaffy's  Appeal,  7  id.  200. 

2  Mann's   Appeal,   1   Barr    (Pa.),   25;        3  Old    Dom.   Gr.    Co.    v.    Clarke,    28 

Qratt.  617. 


228  THE  LAW  OF  IDENTIFICATION. 

and  a  purchaser  need  not  search  beyond  the  index  for  judgment 
liens.  A  subsequent  purchaser,  however,  is  affected  with  such 
notice  as  the  index  entries  afford  ;  and  if  they  are  of  such  a  character 
as  would  induce  a  cautious  and  prudent  man  to  make  an  examina- 
tion of  the  title,  he  must  make  such  examination;  and  if  he  should 
fail  to  do  so,  he  cannot  plead  ignorance  of  such  facts  as  an  examina- 
tion of  the  record  would  have  disclosed.  If  the  index  is  of  a  char- 
acter which  would  put  him  on  inquiry,  it  is  incumbent  on  him  to 
make  such  inquiry.  On  September  21,  1874,  the  bank  recovered  a 
judgment  against  one  Hall,  in  the  Probate  Court,  for  $374.85.  The 
plaintiff  took  a  transcript  of  the  judgment  and  filed  it  with  the  clerk 
of  the  District  Court  on  February  13, 1875.  Hall  then  owned  land 
in  that  county.  This  transcript  was  entered  in  the  judgment-roll 
against  Hall,  Hill  and  Hill.  In  the  general  index  Hall's  name  did 
not  appear,  but  it  was  indexed  thus :  "  Defendants,  Hill,  Theodore 
&  Co.  Plaintiffs,  State  Bank,  Brown ville."  On  September  22, 
1875,  Hall  sold  his  real  estate  for  $2,500,  to  plaintiff  Metz,  receiv- 
ing $100  in  cash,  and  executing  a  bond  for  title  upon  the  payment 
of  the  remaining  $2,400.  Two  days  thereafter,  upon  examination, 
the  condition  of  the  title  to  the  property  in  question  was  not  dis- 
covered, in  consequence  of  the  general  index  failing  to  show,  under 
the  letter  H,  that  Hall  was  a  judgment  debtor.  Hall's  deed  to  plain- 
tiff was  dated  March  4, 1876.  The  court,  speaking  of  the  judgment 
and  lien  thereby  created,  said :  "  Therefore  judgments  which  are  valid 
as  soon  as  rendered  do  not  become  liens  upon  real  estate  as  against 
subsequent  purchasers  without  notice,  until  properly  indexed.  And 
such  purchasers  are  not  required  to  search  for  judgment  liens  further 
than  to  examine  the  proper  index."1 

Judgment  —  names  —  rule  in  Texas. 

§  323.  In  Texas,  the  registration  of  the  abstract  of  a  judgment, 
which  does  not  substantially  describe  the  judgment,  gives  no  notice, 
and  fixes  no  lien,  and  a  judgment  which  was  rendered  as  a  judgment 
in  favor  of  Joan  Burkhead  and  William  Burkhead  against  W.  T. 
&  J.  C.  Roberts,  fix  no  lien  for  a  judgment  rendered  in  a  cause  in 
which  Joan  Bcmkkead  and  William  Bankhead  were  plaintiffs  and 
W.  T.  Roberts  and  J.  C.  Roberts  were  defendants.  It  was  said  that 
"  the  names  of  the  real  plaintiffs  and  of  the  plaintiffs  shown  by  the  rec- 

1  Metz  v.  Bank,  7  Neb.  165.  Citing  Reynolds,  7  W.  &  S.  406;  Buchan  v. 
Hance's  Appeal,  1  Pa.  St.  408 ;  Ridg-  Sumner,  2  Barb.  Ch.  167  ;  Braithwaite 
way's  Appeal,  15  id.  177;  Wood  v.  v.  Watts,  2  Cromp.  &  J.  818. 


ANCIENT  RECORDS  AND  DOCUMENTS.  229 

ords  are  not  idem  sonans"1  And  this  is  the  general  rule  which 
seems  to  prevail  in  this  country  and  in  England,  where  the  pro- 
nunciation is  different. 

Same  —  same  —  rule  in  Iowa. 

§  324.  It  was  held  in  a  recent  case  in  Iowa,  adhering  to  the  gen- 
eral rule  on  the  subject,  that  where  a  party  is  not  charged  with  the 
constructive  notice  of  liens,  by  the  index-book  of  judgments,  he  will 
not  be  bound  by  what  may  appear  of  record.  And  when  two  names 
differing  in  sound  are  commonly  used  as  the  same,  or  are  derived 
from  the  same  source,  as  understood  in  the  English  language,  the 
use  of  one  for  the  other  was  held  not  to  be  a  misnomer ;  and  so  it  was 
held  that  "  Helen  "  and  "  Ellen  "  are  distinct  names,  and  that  where 
a  judgment  was  entered  in  the  index  of  the  judgment-roll,  and  in- 
dexed against  Ellen  Desney,  it  was  not  a  constructive  notice  of  a 
judgment  lien  upon  the  real  estate  belonging  to  "  Helen  "  Desney, 
in  that  county.2 

Name  misspelled  —  fraudulent  purchaser. 

§  325.  A  judgment,  it  was  held  in  Minnesota,  duly  recovered 
against  a  defendant,  whose  name  is  incorrectly  spelled  in  the  proceed- 
ing, is,  when  entered  on  the  docket,  no  lien  on  his  real  property,  un. 
less  as  against  those  who  can  claim  that  by  reason  of  such  misspell- 
ing the  docket  is  not  a  notice  to  them.  But  no  objection  can  be 
made  to  it  by  a  fraudulent  purchaser.  The  plaintiffs  were  partners, 
under  the  firm  name  of  Fuller  &  Johnson.  The  defendant,  Andrew 
Nelson,  being  indebted  to  the  firm,  judgment  thereon  was  rendered 
against  him  in  the  name  of  Andrew  Neilson.  He  was  then  the 
owner  of  lands  in  that  county ;  but  before  the  judgment  was  docketed, 
he  sold  his  land  to  Helmbrecht,  fraudulently,  and  with  intent  to  de- 
feat his  creditors,  Helmbrecht  being  privy  to  that  intent ;  and  an 
action  was  brought  to  set  aside  the  conveyance.  To  use  the  language 
of  the  court :  "  Although  Nelson's  name  was  spelled  wrong  in  the 
judgment,  it  having  been  duly  recovered,  was  a  good  judgment  against 
him,  and,  when  docketed,  a  lien  on  his  property,  unless  as  to  those 
(such  as  subsequent  ~bona  fide  purchasers  and  incumbrancers)  who 
could  claim  that,  by  reason  of  the  misspelling,  and  their  not  being 
idem  sonans,  the  docket  was  not  a  notice  to  them.  Helmbrecht  was 

1  Anthony  v.    Taylor,   68    Tex.  403.  Citing  Trimble  v.  State,  4  Blackf.  437 ; 
Citing  Barron  v.  Thompson,  54  id.  235;  State  v.  Shaw,  28  Iowa,    67;  5  Bacon 
Muller  v.  Boone,  63  id.  94.  Abr.,  title  "Misnomer." 

2  Thomas    v.    Desney,    57  Iowa,   58. 


230  THE  LAW  OF  IDENTIFICATION. 

not  in  that  position.     He  can  make  no  objection  to  the  judgment  or 
docket,  unless  Nelson  can  make  it."1 

Entering  on  the  docket — when  lien  attaches  —  rule  in  California 

§  326.  It  was  held  in  California  that  if  the  clerk  of  the  court,  in 
docketing  a  judgment,  omits  the  Christian  name  of  the  debtor  in  the 
judgment,  or  fails  to  write  the  names  in  alphabetical  order,  this 
omission  will  not  prevent  the  docket  from  making  the  judgment  a 
lien  on  the  real  property  of  the  judgment  debtor  ;  and  if  the  debtor 
executes  a  conveyance  of  such  property  before  the  judgment  is 
docketed,  but  the  deed  is  not  delivered  to  the  purchaser  until  after 
the  judgment  is  docketed,  the  judgment  lien  will  attach  to  the  prop- 
erty. If  the  former  proposition  is  correct  (which  will  probably  ad- 
mit of  a  doubt),  the  latter  is  clearly  correct,  for  the  reason  that  the 
rights  of  the  purchaser  do  not  attach  until  the  delivery  of  the  deed, 
which  is  the  execution  thereof,  and  conveys  the  title.2 

1  Fuller  v,  Nelson,  35  Minn.  313.  » Hibberd  v,  Smith,  50  Cal,  511. 


CHAPTER  IX. 

HANDWRITING  —  SUBSCRIBING  WITNESS. 


SEC.  SEC. 

327.  Identity  of  signature  of  attesting    356. 

witness  —  origin  of  the  rule. 

328.  Same  —  admission  —  rule  in  Eng-    357. 

land. 

329.  Same  —  same  —  signature  of  attest-    358. 

ing  witness. 

330.  Same  —  error  —  doubtful  rule  —    359. 

conflict. 

331.  Witness  out  of  the  way  —  collusion.    360. 

332.  Reason  of  the  rule  —  difference  in 

ruling.  361. 

333.  Same  —  when  secondary  evidence 

to  be  admitted.  362. 

334.  Same — attesting  witness  avoiding 

subpoena.  363. 

335.  Same — secondary  evidence  —  when    364. 

received. 

336.  Witness  —  signature  —  circum-     365. 

stance  not  remembered. 

337.  Same  —  same  —  rule  in  Kentucky .     366. 

338.  Two  attesting  witnesses  —  one  ab- 

sent. 367. 

339.  Same  —  one  dead  —  one  in  Canada. 

340.  Witnesses  —  absence    to    be    ac-    368. 

counted  for. 

341.  Same  —  power  of  attorney  —  pre-    369. 

sumption  of  death. 

342.  Witness  —  recollection  —  name  —    370. 

circumstances.  371. 

343.  Bond — deputy  sheriff  —  signature. 

344.  Handwriting  —  of  subscribing  wit-    372. 

nesses.  373. 

345.  Proof  of  name  —  when  prima  facw. 

346.  Same  —  idem  sonans.  374. 

347.  Deed  to  father  or  son  —  same  name. 

348.  Parties    to    actions  —  variance  —    375. 

name.  376. 

349.  Identity  of  pilot  —  collision  of  ves- 

sels. 377. 

350.  Name  —  promissory  note  —  suit  for 

rent.  373. 

351.  Subscribing  witness  —  proof  of . 

352.  Photograph  —  writing  —  signature    379. 

—  evidence. 

353.  Authority  to  sign  the  name  of  an-    380. 

other. 

354.  Subscribing  witness  to  promissory     381. 

note. 

355.  Ejectment  —  notice  —  witness  to. 


Interested  witness  —  when  incom- 
petent. 

Witness  —  search  for  —  diligence 
required. 

Same  —  diligence  —  rule  in  the 
United  States  Supreme  Court. 

Subscribing  witness  —  secondary 
evidence  —  general  rule. 

Same —  conflict —  rule  as  to  hand, 
writing. 

Proof  of  receipt  —  common  carrier 
—  early  rule. 

Rule  as  to  admitting  secondary 
evidence  of  signature. 

Search  for  attesting  witness. 

Same  —  where  the  witness  disap- 
pears. 

Diligent  search  for  witness  — what 
is? 

Same  —  degree  of  search  —  good 
faith. 

When  contract  proved  without 
writing. 

Writing  —  knowledge  of  —  how 
acquired. 

Knowledge  acquired  from  examin- 
ing papers. 

By  observation  and  comparison. 

Attesting  witness  —  proof  —  when 
and  how  made. 

Attesting  witness  to  deed  —  proof. 

Several  witnesses  —  necessity  of 
calling  them. 

Confession  by  obligor  —  not  suffi- 
cient. 

Signature — admission  not  received. 

Same  —  attesting  witness  —  satis- 
factory evidence. 

Fictitious  witness  —  attestation  — 
evidence. 

Witness  to  instrument  —  identity 
of  person  —  name. 

Comparison  of  writings  —  rule  in 
Massachusetts. 

Assignment  —  indorsement  of 
note. 

Means  of  knowledge  —  hand  writ- 
ing. 


232  THE  LAW  OF  IDENTIFICATION. 

Identity  of  signature  of  attesting  witness  —  origin  of  the  rule. 

§  327.  The  history  of  the  rule  which  requires  the  proof  and  iden- 
tity of  the  handwriting  of  a  subscribing  witness  to  the  execution  of 
an  instrument  in  the  first  instance,  and  before  you  are  permitted  to 
identify  the  signature  of  the  maker  or  obligor,  grew  up  in  England  it 
seems  about  the  year  1786.  The  law  upon  the  subject  had  long  been 
unsettled;  many  doubts  were  expressed,  and  the  opinions  were  conflict- 
ing. The  rule  which  required  the  proof  of  the  execution  of  the  bond 
by  the  subscribing  witness  was  reasonable,  well  recognized  as  a  rule 
founded  in  reason,  because  he  was  chosen  by  the  parties  to  bear  wit- 
ness to  their  contract,  and  proof  of  his  handwriting  in  case  he  could 
not  be  found,  and  also  proof  of  the  handwriting,  or  the  confession  of 
the  obligor  would  be,  it  was  thought,  very  satisfactory,  when  not 
counteracted  by  opposing  evidence ;  and  for  a  long  time  the  courts 
had  been  quite  rigid  in  the  enforcement  of  this  rule,  in  case  the  wit- 
ness was  living.  At  length  it  was  thought  that  this  excessive  strict- 
ness was  productive  of  more  harm  than  good.1  Then  an  act  of  the 
English  Parliament  was  passed  to  facilitate  the  proof  of  written  in- 
struments in  the  East  Indies  in  1786.2  The  courts  were  then  soon 
of  opinion  that  where  the  witness  was  in  foreign  countries,  proof  of 
his  handwriting  might  be  admitted  on  common-law  principles.  The 
question  came  up  before  the  Court  of  Common  Pleas  in  1798,  in  an 
action  of  debt  on  a  bond,  where  the  instrument  was  executed  in  Ja- 
maica, and  attested  by  two  witnesses,  but  it  being  produced  at  the 
trial  at  Westminster,  appeared  to  have  no  seal,  though  a  mark  of  a 
particular  kind  had  been  made  with  a  pen,  in  the  place  where  bonds 
are  usually  sealed  ;  and  evidence  was  admitted  to  show  a  custom  in 
Jamaica  to  execute  bonds  in  this  manner.  One  of  the  attesting  wit- 
nesses was  dead,  and  the  other  resided  in  Jamaica,  The  handwrit- 
ing of  the  former  only  was  essential,  and  no  evidence  was  given  as 
to  the  handwriting  of  the  obligor.  There  was  judgment  for  the 
plaintiff  subject  to  the  opinion  of  the  court.  BULLKR,  J.,  said : 
"  Where  a  witness  is  dead,  the  course  is  to  prove  his  handwriting. 
In  this  case  one  of  the  attesting  witnesses  was  dead,  and  the  other 
was  beyond  the  reach  of  the  process  of  the  court ;  the  best  evidence, 
therefore,  which  could  be  obtained  was  given.  The  handwriting  of 
the  obligor  need  not  be  proved ;  that  of  the  attesting  witness,  when 
proved,  is  evidence  of  every  thing  on  the  face  of  the  paper  which 

1  Clark  v.  Sanderson,  3  Binn.  (Pa.)  "Act  20Geo.  Sd.chap.  57,  §  38(1786). 
194. 


HANDWRITING —  SUBSCRIBING  WITNESS.  233 

imports  to  be  sealed  by  the  party." l  This  was  one  of  the  early 
mistakes  made  by  the  courts,  and  it  has  been  followed  up,  as  we 
shall  see  in  our  next  sections. 

Same  —  admission  —  rule  in  England. 

§  328.  Following  up  the  rule  as  treated  in  our  last  section,  another 
case  in  England  was  decided  in  1808.  The  plaintiff  put  in  a  paper 
signed  by  defendant's  attorney,  whereby  the  signatures  of  the 
defendant  and  the  attesting  witness  were  admitted.  Lord  ELLEN- 
BOROUGH  (given  to  doubting)  first  doubted  whether  the  delivery  of  the 
bond  by  the  defendant,  as  his  deed,  ought  not  also  to  have  been  ad- 
mitted, or  must  not  still  be  proved,  to  entitle  the  plaintiff  to  a  ver- 
dict ;  but  upon  further  consideration,  his  lordship  said,  as  the  attest- 
ing witness'  handwriting  was  admitted,  this  might  be  taken  as  a 
presumptive  admission  of  all  he  professed  to  attest,  and  would  have 
been  called  upon  to  prove  in  the  case,  thereby  attaching  all  im- 
portance to  the  admission  of  the  signature  of  the  subscribing  witness, 
and  no  importance  to  the  admission  of  the  signature  of  the  obligor 
who  executed  the  paper.2 

Same  —  same  —  signature  of  attesting  witness. 

§  329.  A  previous  case  had  been  decided  in  England  in  1803,  in 
an  action  of  debt  on  a  bond,  where  it  was  held  that  the  frank  ad- 
mission by  the  defendant  —  the  obligor  on  the  bond  —  was  held  not  to 
be  conclusive  evidence  of  its  execution  by  him,  but  mere  secondary 
evidence  of  that  fact,  and  could  not  be  received  as  evidence  of  its 
execution,  without  showing  that  due  diligence  had  been  used  to  dis- 
cover who  the  subscribing  witness  was,  who  was  alleged  to  be  un- 
known.3 In  these  cases,  perhaps,  we  find  the  origin  of  this  fallacy. 
But  at  length  that  court  did  admit  that  it  was  reasonable  that  where 
the  witness  was  out  of  the  jurisdiction  of  the  court,  proof  of  his 
handwriting  should  be  received  in  evidence.  This  may  seem  incredi- 
ble, but,  by  reference  to  the  cases  above  cited,  you  may  find,  to  your 
astonishment,  it  is  even  so.  Not  only  so,  but  the  courts  of  New 
York  have  established  the  same  rule,  without  giving  the  slightest 
reason  for  it.4 

Same  —  error  —  doubtful  rule  —  conflict. 

§  330.  But  some  of  our  American  courts,  with  probably  not  suf- 
ficient temerity  to  overrule  decisions  which  are  without  reason,  but 

1  Adam  v.  Kerr,  1  Bos.  &  Pull.  360.  3  Call  v.  Dunning,  4  East,  53. 

8  Mil  ward  v.  Temple,  1  Campb.  375.          4  Jackson  v.  Waldron,  13  Wend.  178. 

30 


234  THE  LAW  OF  IDENTIFICATION. 

established  as  rales,  have  yet  evinced  a  disposition  to  recede  from 
these  long-established  rules.  Other  courts  might  have  followed  and 
changed  the  whole  current  of  decisions  on  this  subject,  had  it  not 
been  for  the  fact  that  the  Supreme  Court  of  the  United  States,  in 
1830,  in  a  case  involving  this  question,  said :  "  Whatever  may  have 
been  the  origin  of  this  rule,  and  in  whatever  reason  it  may  have  been 
founded,  it  has  been  too  long  established  to  be  disregarded,  or  to 
justify  an  inquiry  into  its  original  correctness."1  But  we  have  heard 
it  said  that  courts  do  sometimes  blindly  follow  erroneous  precedent. 
But  the  court  of  Pennsylvania,  in  1810,  had  the  boldness  to  express 
a  doubt,  without  overruling,  like  Lord  ELLENBOROUGH  (more  given 
to  doubting  than  overruling).  In  an  action  of  assumpsit  against  an  ex- 
ecutor on  a  promissory  note,  held,  that  if  the  subscribing  witness  be 
out  of  the  jurisdiction  of  the  court,  or  cannot  be  found  after  diligent 
search,  and  no  person  can  be  found  within  the  jurisdiction  who  can 
prove  the  handwriting  of  the  witness,  the  handwriting  of  the  obligor 
may  be  proved.  But  the  question  there  arose,  whether,  if  the  hand- 
writing of  the  attesting  witness  be  proved,  that  of  the  obligor  should 
not  be  proved  also.  On  the  trial  of  the  case  plaintiff  proved  that 
the  only  subscribing  witness  resided,  about  seven  years  before,  in 
Cumberland  county;  that  about  six  years  before,  she  was  residing  in 
Baltimore"  that  inquiry  had  been  made  for  her  in  Cumberland  with- 
out finding  her,  but  that  no  inquiry  had  been  made  in  Baltimore, 
and  finally  that  diligent  search  had  been  made  in  Cumberland  for 
some  person  who  could  prove  the  handwriting  of  the  witness,  but 
without  effect.  Plaintiff  then  offered  to  prove  the  handwriting  of 
the  obligor.  This  evidence  was  objected  to,  and  overruled  by  the 
court,  who  sealed  a  bill  of  exceptions,  which  presented  the  question 
to  the  Supreme  Court,  where  it  was  reversed.2* 

T  Clarke  v.  Courtney,  5  Pet.  344  (1831).         8  Clark   v.    Sanderson,  3   Binn.  (Pa.) 

195  (1810). 

•Speaking  on  this  subject,  in  Clark  v.  Sanderson,  3  Binn.  (Pa.)  195,  TILQHMAN,  Ch.  J.,  said: 
"This  appears  to  me,  on  the  whole,  to  be  the  best  rule  for  the  admission  of  secondary  evidence,  be- 
cause it  produces  the  greatest  certainty.  If  the  matter  is  made  to  depend  on  the  degree  of  diffi- 
culty in  procuring  the  testimony  of  the  subscribing  witness,  no  man  will  know  what  the  law  Is. 
Whether  the  distance  of  a  thousand  or  one  hundred  miles  would  be  sufficient  cause  to  admit 
secondary  evidence,  would  depend  on  the  ideas  of  the  judge  who  tried  the  cause;  nor  is  there 
any  thing  unreasonable  In  admitting  this  kind  of  evidence,  when  the  witness  Is  out  of  the  juris- 
diction of  the  court;  the  witness  cannot  be  compelled  to  attend  the  court,  consequently  the 
writing  to  be  proved,  must  be  sent  to  the  witness,  which  is  attended  not  only  with  inconvenience, 
but  some  risk  of  loss,  and  after  all,  the  jury  are  to  decide  whether  the  secondary  evidence  is 
satisfactory.  It  Is  always  to  be  understood  that  there  must  be  no  fraud  or  collusion  in  getting 
the  witness  out  of  the  way.  If  any  thing  of  that  kind  can  be  proved,  his  testimony  is  not  to  be 
dispensed  with.  In  the  case  before  us  the  subscribing  witness  was  out  of  the  State.  According 


HANDWRITING  —  SUBSCRIBING  WITNESS.  235- 

Witness  —  out  of  the  way  —  collusion. 

§  331.  In  a  case  in  England,  the  clerk  of  the  defendant  was  a  subscrib- 
ing witness  on  a  bond,  and,  when  subpoenaed,  said  he  would  not  attend, 
and  the  case  was  continued  twice  on  account  of  his  absence ;  search 
had  been  made  at  the  defendant's  house  and  in  the  neighborhood  ; 
and  upon  receiving  information  at  the  defendant's  that  the  witness 

to  the  principle  that  I  have  laid  down  then,  proof  of  her  handwriting  was  admissible,  but  this 
was  not  to  be  obtained,  although  search  was  made  for  proof  in  that  part  of  the  State  where  she 
had  formerly  resided.  It  will  often  happen  that  the  handwriting  of  witnesses  cannot  be  proved 
because  persons  are  called  as  witnesses  who  reside  in  the  family  of  the  parties,  not  much  ac- 
customed to  writing,  and  whose  writing  is  very  little  known.  What,  then,  Is  the  next  best  evi- 
dence ?  The  handwriting  of  the  obligor.  I  rank  the  handwriting  of  the  obligor  after  that  of  the 
witness,  in  compliance  with  the  rule  which  has  been  established ;  althoughjin  my  own  opinion 
it  is  more  convincing  evidence  of  the  execution  of  the  bond  by  the  obligor,  than  proof  of  the 
writing  of  the  witness.  When  there  is  no  doubt  of  the  writing  of  the  obligor,  it  is  so  difficult 
to  account  for  his  name  being  there,  unless  he  executed  the  writing,  that  there  will  be  little 
doubt  of  the  execution.  So  important  indeed  is  the  handwriting  of  the  obligor,  that  I  am 
not  satisfied  its  proof  ought  to  be  dispensed  with,  even  where  the  writing  of  the  subscribing 
witness  has  been  proved.  Considering  all  the  facts  stated  in  the  bill  of  exceptions,  I  am  of  opin- 
ion that  the  evidence  offered  by  the  plaintiff  in  the  court  below,  of  the  handwriting  of  John 
Sanderson,  was  improperly  rejected;  and  therefore  the  judgment  should  be  reversed  and  a 
venire  facias  de  novo  awarded."  BRACKENRIDGE  J.,  said:  "I  consider  the  rule  of  calling  the 
subscribing  witnesses  to  a  writing  or  proving  their  handwriting,  before  proof  can  be  let  in  of  the 
handwriting  or  even  acknowledgment  of  the  maker,  as  founded  upon  very  questionable  reason, 
and  to  be  restrained  in  its  application.  It  is  founded  on  this  reason :  The  subscribing  witnesses 
are  supposed  to  be  called  upon  by  the  person  to  whom  the  writing  is  made,  as  those  on  whom  he 
depends  to  attest  it  in  case  of  the  want  of  proof;  and  he  must  resort  to  these  by  his  own  agree- 
ment, before  he  can  recur  to  other  proof.  Or  for  another  reason,  that  the  person  who  makes 
the  writing  has  an  interest  in  having  them ;  as  by  the  act  of  witnessing  they  were  considered  as 
those  who  must  in  the  first  instance  be  called  upon  to  prove  it;  so  that  if  the  making  was 
attended  with  any  circumstance  that  might  avoid  it  in  law  or  equity,  it  might  be  shown.  It 
might  rather  be  said,  and  which,  in  the  understanding  of  the  people,  is  the  case,  and  is  the  true 
reason  In  fact  of  calling  witnesses,  that  if  the  person  to  whom  the  writing  is  made  should  not  be 
able  to  prove  the  handwriting  of  the  maker,  or  acknowledgment  that  it  is  his  handwriting,  he 
might  recur  to  the  witnesses  or  proof  of  their  handwriting,  so  as  to  have  an  enlarged  chance  of 
establishing  the  instrument.  In  such  case  the  proof,  of  handwriting  of  witnesses,  or  maker, 
might  be  considered  of  the  same  grade,  and  as  all  of  a  nature  primary  and  original.  At  all 
events,  proof  of  the  handwriting  of  the  maker  is  of  equal  rank  with  that  of  proof  of  the  hand- 
writing of  the  witnesses.  The  rule,  however,  is  settled  otherwise;  but  in  analyzing  the  reason 
of  it,  and  seeing  that  to  be  questionable  or  otherwise,  we  are  justified  in  amplifying  or  restrain- 
ing the  application  of  it.  I  am,  therefore,  disposed  to  think  that  the  being  out  of  the  reach  of 
the  process  of  the  court  should  be  the  circumstance  on  which  the  letting  in  what  is  called  the 
secondary  evidence  ought  to  be  left  to  depend;  though  I  should  be  as  well  satisfied,  that  proof 
of  the  handwriting  of  the  maker  could  be  admitted  in  the  first  instance,  and  that  it  should  be 
left  to  the  defendant  to  give  notice  that  he  meant  to  call  the  subscribing  witnesses  with  a  view- 
to  make  out  an  equity  explaining  the  assumpsit. " 

Under  the  strict  adherence  to,  and  enforcement  of  the  above  rule,  difficulties  sometimes  arose» 
When  the  defendant,  or  party  who  had  executed  the  instrument,  wished  to  avoid  it,  or  throw 
obstacles  in  the  way  of  proving  it,  he  would,  by  fraud  and  collusion,  have  the  witness  out  of  the 
way  when  he  was  most  needed.  But,  when  this  could  be  proved,  due  diligence  must  be  shown, 
before  proof  of  the  signature  of  the  witness  could  be  let  in.  And  in  Mills  v.  Twist,  8  Johns.  121, 
decided  by  the  New  York  court  in  1811,  the  witnesses  to  a  written  contract  were  the  sons  of  the 
defendant,  who  executed  the  contract;  and  the  plaintiff,  the  day  before  the  sitting  of  the  court, 
inquired  of  the  defendant  for  the  witnesses  hi  order  to  have  them  subpoenaed,  and  was  falsely 
told  by  the  defendant  that  they  were  gone  on  a  journey.  This  was  held  not  to  be  a  sufficient 
reason  for  admitting  other  testimony  of  the  handwriting,  the  plaintiff  not  having  used  sufficient 
diligence  to  procure  the  witnesses.  And  see  Cunliffe  v.  Sefton,  2  East,  183,  and  Crosby  v.  Percy,. 
1  Taunt.  365. 


236  THE  LAW  OF  IDENTIFICATION. 

had  gone  to  Margate,  inquiry  was  there  made  without  success.  It 
was  held  that,  under  the  circumstances,  evidence  of  his  handwriting 
was  admissible.  ABBOTT,  C.  J.,  said  :  "  I  remember  the  case  well, 
and  there  was  strong  ground  for  believing  that  the  witness  was 
kept  out  of  the  way,  purposely,  by  the  defendant.  It  appears  that 
upon  receiving  the  subpoena,  the  witness  said  he  would  not  attend. 
I  do  not  believe  that  he  did  attend,  with  any  view  of  exhibiting 
himself  as  a  witness.  I  think  that  due  diligence  was  made  for  him 
and  that  the  search  was  made  with  reference  to  his  condition.  The 
case  of  Crosby  v.  Percy,  1  Taunt.  365,  is  as  strong  as  the  present, 
and  upon  the  ground  of  collusion,  and  not  believing  that  the  post- 
ponement of  the  trial  would  have  assisted  the  plaintiff  in  obtaining 
the  attendance  of  this  witness,  I  think  that  the  evidence  of  his  hand- 
writing was  properly  admitted."  BAYLEY,  J.,  said  :  "  The  search 
must  certainly  be  made  with  reference  to  the  condition  of  the  wit- 
ness. I  think  that  it  has  been  so  made  in  the  present  case.  The 
clerk  was  referred  to  Margate  and  went  thither."  BEST,  J.,  said  : 
"  The  circumstance  of  the  witness  being  subpoenaed  would  have  been 
a  very  strong  feature,  if  the  court  could  believe  that  the  witness 
actually  attended  according  to  the  subpoena,  but  we  do  not  believe 
this."1 

Keason  of  the  rule  —  difference  in  ruling. 

§  332.  It  was  held  in  England  in  1828,  that  to  dispense  with  the 
necessity  of  calling  the  subscribing  witness  to  a  deed,  it  is  sufficient 
to  show  that  he  expressed  an  intention  of  leaving  the  country  to 
avoid  a  criminal  prosecution,  and  that  he  had  good  reason  for  doing 
so,  and  that  his  relations  have  not  seen  him  since  that  time  ;  that  it 
was  not  necessary,  in  the  absence  of  the  subscribing  witness,  to  prove 
the  handwriting  of  the  party  who  executed  the  deed,  it  is  enough  to 
prove  the  handwriting  of  the  witness.  And  here,  for  the  first  time 
that  I  have  noticed,  was  a  slight  disagreement  of  two  of  the  English 
judges  on  this  point.  CAMPBELL,  for  defendant,  said :  "  Mr. 
Justice  BAYLEY  holds  that  the  handwriting  of  the  party  executing 
ought  to  be  proved ;  and  Lord  TENTKUDEN  holds,  that  it  need  not. 
But  Mr.  Justice  BAYLEY'S  practice  appears  to  me  to  have  the  better 
reason  in  its  favor,  because,  if  the  subscribing  witness  is  not  produced, 
it  will  stand  as  if  there  was  no  subscribing  witness,  and  then  the 
handwriting  of  the  party  executing  should  be  proved.  But  BEST, 

1  Hurt  v.  Walker,  4  B.    &  Aid.  097.  And  see  Mills  v.  Twist,  8  Johns.  121. 


HANDWRITING  —  SUBSCRIBING  WITNESS.  237 

C.  J.,  said :  "I  have  a  great  respect  for  the  opinion  of  ray  brother 
BAYLEY,  but  I  think  I  am  bound  in  such  a  case  to  act  as  my  prede- 
cessors have  done.  It  has  been  the  uniform  practice  only  to  prove 
the  handwriting  of  the  attesting  witness,  and  I  am  of  opinion  that  it 
is  the  most  convenient  course.  I  consider  that  mode  the  most  desir- 
able which  tends  to  diminish  the  number  of  witnesses."  In  a  note  to 
this  case,  we  find  a  note,  attempting  to  answer  this  objection,  as 
follows  :  "  I  may  perhaps  be  asked  how,  if  the  subscribing  witness 
be  not  called,  is  the  identity  of  the  party  executing  to  be  proved 
unless  by  calling  somebody  who  knows  his  handwriting  ?  But  to 
this  it  may  be  replied,  that  it  is  not  to  be  presumed  that  the  sub- 
scribing witness  would  have  attested  the  executing  of  any  other  per- 
son than  the  person  described  in  the  deed  ;  and  this  will  be  an  answer 
to  the  argument  relied  on,  that  in  the  absence  of  the  subscribing 
witness  it  would  stand  as  if  there  were  none."1  It  certainly  would  not 
strike  the  average  reflecting  mind  as  an  answer.  And  I  submit  that 
it  has  neither  reason  or  logic,  and  so  far  from  being  an  answer  to  the 
question  raised,  it  is  not  a  fit  answer  for  any  imaginable  question. 

Same  —  when  secondary  evidence  to  be  admitted. 

§  333.  An  action  was  brought  on  a  bond  for  £600  executed  in 
1811.  Defendant  interposed  a  plea  of  non  estfaotum.  It  was  tes- 
tified that  the  attesting  witness  kept  out  of  the  way  to  avoid  an  arrest. 
It  was  held  that  this  was  not  a  sufficient  reason  for  dispensing  with 
the  attendance  of  such  subscribing  witness  to  prove  the  execution  of 
the  bond  by  the  obligor,  and  evidence  of  his  handwriting  having  been 
given  aliunde  on  which  the  obligee  obtained  a  verdict,  the  court 
ordered  a  new  trial.  Lord  ELLENBORUGH  is  reported  as  having  said  : 
"  The  proof  of  the  fact  of  a  subscribing  witness  going  to  sea  about 
twenty  years  ago  (so  great  a  portion  of  the  life  of  man),  and  never 
being  heard  of  since,  would,  of  itself,  be  sufficient  to  admit  proof  of 
his  handwriting."2  To  this  case  is  appended  a  note  from  1  Phillips 
on  Evidence  (5th  ed.)  472,  to-wit :  "  It  is  not  possible  by  any  gen- 
eral rule  to  ascertain  precisely  in  what  cases  proof  of  the  subscribing 
witness'  handwriting  will  be  admitted.  Each  case  must  depend  upon 
its  own  peculiar  circumstances.  But  in  all  cases  it  ought  to  be 
satisfactorily  proved  that  a  reasonable,  honest  and  diligent  inquiry  has 
been  made,  without  any  evasion,  and  without  any  design  to  overlook 
the  witness." 

1  Kay  v.  Brookman,  3  Carr.  &  P.  555.        2  Pytt  v.  Griffith,  6  Moore,  538. 


238  THE  LAW  OF  IDENTIFICATION. 

Same  —  attesting  witness  —  avoiding  subpoena. 

§  334.  In  another  English  case  an  action  of  assumpsit  was  brought 
on  a  bill  of  exchange  against  an  executor.  There  was  a  subscribing 
witness,  whose  name  was  George  Phillips,  a  son  of  the  defendant. 
He  was  not  called  as  a  witness,  but  to  account  for  his  absence,  it  was 
proved  that  many  unsuccessful  attempts  had  been  made  to  subpoena 
him.  He  lived  with  his  father,  and  on  application  at  the  house,  at 
different  hours  of  various  days,  answers  were  given,  sometimes  that  he 
was  out  of  town,  and  sometimes  that  he  was  gone  out  for  a  walk.  One 
witness  stated,  that  when  told  that  he  was  gone  out  for  a  walk,  he 
watched  the  house  for  hours,  but  did  not  see  him  return.  On  another 
occasion  he  watched  from  five  in  the  morning  till  nine,  and  then  in- 
quired for  him.  The  servant  said,  he  had  been  gone  out  for  an 
hour.  The  witness  said  :  "  It  is  impossible,  for  I  have  been  watch- 
ing since  five."  The  servant  replied,  laughingly,  "  He  went  out 
the  back  way  this  morning."  TINDALL,  J.,  said:  "I  think  you 
have  hunted  enough  after  George  Phillips.  It  is  evident  that  they 
are  keeping  you  at  arm's  length."1 

Same  —  secondary  evidence  —  when  received. 

§  335.  In  a  Massachusetts  case  where  it  became  necessary  to  prove 
the  execution  of  a  deed,  to  which  there  were  two  subscribing  wit- 
nesses, one  of  whom  deposed  that  he  did  not  recollect  witnessing  it, 
but  knew  the  attestation  to  be  in  his  handwriting,  and  that  the  other 
subscribing  witness  had,  a  short  time  previously,  but  long  after  the 
commencement  of  the  suit  in  which  the  deposition  was  taken,  left 
the  State,  after  advertising  his  intention  to  do  so,  and  that  though 
the  deponent  did  not  recollect  having  seen  him  write  his  name,  he 
had  often  received  letters  from  him  and  thought  the  signature  in 
question  was  his  handwriting.  This  was  held  sufficient  proof  of 
the  execution  to  read  it  in  evidence.  No  question  was  asked  as  to 
the  signature  of  the  party  signing  the  instrument.  If  this  witness 
knew  the  handwriting  of  the  grantor  in  the  deed,  he  kept  it  to 
himself ;  if  it  were  a  forgery,  it  seemed  that,  under  this  rule,  the  fact 
might  be  concealed.2  In  an  important  case  on  this  point  Lord 
ELLENBOROUGH  said :  "  I  am  disposed  to  treat  whatever  falls  from 
the  learned  chief  justice  of  the  Common  Pleas  with  the  greatest 
respect,  but  I  do  not  see  how  secondary  evidence  is  to  be  admitted 

1  Hill  v.  Phillips,  5  Carr.  &  P.  356        8  Russell  v.  Coffin,  8  Pick.  14& 
(1882). 


HANDWRITING  —  SUBSCRIBING  WITNESS.  239 

or  received  according  to  the  nature  of  the  deed  to  be  proved.  It 
must  depend  upon  the  possibility  of  procuring  the  attendance  of  the 
attesting  witness,  not  upon  the  testimony  he  is  likely  to  give."1 

Witness  —  signature  —  circumstance  not  remembered. 

§  336.  An  action  was  brought  on  a  bond,  to  which  the  defendant 
pleaded  non  estfactum.  An  attesting  witness  thereto  recognized 
his  own  signature,  and  was  inclined  to  believe,  from  the  circumstances, 
that  the  deed  was  executed  in  his  presence.  He  remembered  that 
the  parties  to  it  were  assembled  together  at  the  time  of  the  supposed 
execution  of  it.  It  was  sufficient  evidence  to  go  to  the  jury,  al- 
though the  witness  had  no  recollection  of  having  seen  either  of  the 
parties  sign  it,  seal  or  deliver  it,  or  heard  either  of  them  acknowl- 
edge it,  at  the  time,  to  be  their  deed.  The  other  subscribing  wit- 
ness was  called  by  the  opposite  party,  who  testified  that  one  of  the 
parties  had  not  signed  it  at  the  time  of  the  attestation ;  nor  had  this 
witness  any  recollection,  nor  had  ever  been  asked  to  sign  it  at  any 
time  that  the  witness  knew  of ;  and  that  in  fact  he  was  not  present 
at  the  attestation.  The  case  was  submitted  to  the  jury  upon  this 
testimony,  and  they  found  for  the  plaintiff,  and  the  court  refused  to 
interfere  or  disturb  their  verdict.2  In  an  English  case  in  1828,  the 
attesting  witness  recognized  his  signature,  but  had  no  recollection  of 
the  fact  of  the  instrument  having  been  executed  in  his  presence, 
but  that  seeing  his  signature  to  it  he  had  no  doubt  he  saw  it  executed. 
This  was  received  by  the  court  as  sufficient  to  admit  it  to  go  in  evi- 
dence to  the  jury.3 

Same  —  same  —  rule  in  Kentucky. 

§  337.  In  a  case  decided  in  Kentucky  in  1824,  involving  this 
question,  the  subscribing  witness  was  called  to  prove  the  execu- 
tion of  the  written  instrument.  He  testified  that  he  had  then  no  re- 
collection of  the  transaction,  but  although  he  could  not  remember 
attesting  the  paper,  it  was  done  in  his  handwriting ;  that  the  name 
of  the  party  was  not  in  his,  the  party's,  handwriting.  The  witness 
further  testified,  that  it  had  been  his  invariable  practice  in  such 
cases  never  to  attest  a  paper  unless  he  saw  the  party  sign  it,  or  heard 
him  acknowledge  that  it  was  his  signature,  and  that  he  was  confident 
the  case  then  in  question  was  not  an  exception  to  his  general  rule. 

1  Crosby  v.  Percy,  1  Taunt.  364.  8  Maugham  v.  Hubbard,  2  Mann.   & 

*  Collins  v.  Lemasters,  2  Bailey  (S.  C.),     Ry.  7. 
141  (1831). 


240  THE  LAW  OF  IDENTIFICATION. 

This  was  held  sufficient  evidence  of  its  execution  to  admit  the  paper 
in  evidence  to  go  to  the  jury.1 

Two  attesting  witnesses  —  one  absent. 

§  338.  An  action  of  debt  was  brought  in  England  against  an  ex- 
ecutor on  a  bond  executed  by  the  testator  in  his  lif e-time,  and  the 
defendant  interposed  a  plea  of  non  estfactum.  The  bond  in  ques- 
tion purported  to  have  been  executed  in  Ireland  and  to  have  been 
attested  by  two  subscribing  witnesses.  The  plaintiff,  having  called 
one  of  the  witnesses,  who  swore  to  the  execution  of  the  bond,  and 
having  also  given  evidence  to  show  that  the  bond  had  been  signed 
by  the  testator,  proposed  to  prove  the  handwriting  of  the  other  at- 
testing witness,  who,  it  appeared,  was  then  in  Ireland,  but  had  not 
been  applied  to  to  attend.  Lord  ELLENBOROUGH  was  first  of  opinion 
that  this  evidence  was  inadmissible  in  the  absence  of  proof  of  any 
steps  having  been  taken  to  procure  the  attendance  of  the  other  wit- 
ness. But  PAKK  citing  the  case  of  Prince  v.  .Blackburn,  2  East, 
250,  in  which  it  had  been  laid  down  that  evidence  of  the  hand, 
writing  of  the  subscribing  witness  is  admissible  where  the  witness 
resided  beyond  the  jurisdiction  of  the  court.  His  lordship  on  the 
strength  of  this  authority  admitted  the  evidence.2 

Same  —  one  dead  —  one  in  Canada. 

§  339.  In  an  action  of  covenant  for  rent  reserved  in  a  lease,  to 
which  there  were  two  attesting  witnesses,  the  court  of  New  York, 
in  compliance  with  the  English  rule  on  the  subject,  held  that  the 
proof  of  the  handwriting  of  the  witnesses,  one  of  whom  was  dead 
and  the  other  residing  in  Upper  Canada,  was  sufficient  without  prov- 
ing the  handwriting  of  the  lessor  or  the  lessee.  This,  to  pacify  the 
rule  we  have  seen  on  secondary  evidence,  that  in  cases  requiring  a 
resort  to  proof  of  handwriting  of  attesting  witnesses,  the  presump- 
tion is  that  he  has  attested  what  took  place,  and  that  this  is  sufficient 
without  proof  of  the  signature  of  the  maker,  the  latter  being  held  to 
be  of  less  importance  than  the  former.3  Where  there  were  several 
witnesses  to  a  deed  or  power  of  attorney,  it  was  held  not  enough  to 
prove  that  one  of  them  is  dead  or  beyond  the  jurisdiction,  and  then 
prove  his  handwriting  with  that  of  the  party,  but  the  absence  of  all 
must  be  accounted  for;  as  that  they  are  dead  or  beyond  the  jurisdic- 

1  Brown  v.  Anderson,  1  T.  B.  Monroe  2  Hodnett  v.  Forman,  1  Starkie,  90 
(Ky.),  198.  (1815). 

»  Lush  v.  Druse,  4  Wend.  813  (1830). 


HANDWRITING  —  SUBSCRIBING  WITNESS.  241 

tion  of  the  court,  or  that  diligent  inquiry  has  been  made  and  they 
cannot  be  found.1 

Witnesses  —  absence  to  be  accounted  for. 

•  §  340.  "Where  there  was  a  dispute  as  to  the  identity  of  a  witness 
to  a  deed,  there  being  several  persons  of  the  same  name,  a  witness, 
in  order  to  identify  him,  was  allowed  to  compare  the  handwriting 
subscribed  as  an  attestation  to  the  deed,  with  another  writing,  long 
in  his  possession,  and  reputed  to  be  the  handwriting  of  a  man  of  the 
name  subscribed,  though  he  had  never  seen  that  man  write.  This 
evidence  was  received  without  objection  ;  and  the  court  inclined  to 
think  the  evidence  would  have  been  admissible  for  the  purpose  of 
identity,  even  if  it  had  been  objected  to.2 

Same  —  power  of  attorney  —  presumption  of  death. 

§  341.  In  an  action  of  ejectment  which  came  to  the  Supreme  Court 
of  the  United  States  from  Georgia  in  1835,  claiming  under  a  land 
grant  from  the  State  of  Georgia  to  Bazil  Jones,  who  gave  a  power 
of  attorney  to  Thomas  Smith  to  sell  the  land,  which  power  of  attor- 
ney was  witnessed  by  Abraham  Jones,  J.  P.,  and  Thomas  Harwood 
Jr.,  and  a  certified  copy  from  the  records  of  Richmond  county,  and 
to  account  for  the  loss  of  the  original  power  of  attorney,  of  which 
the  copy  was  offered,  and  the  use  of  diligence  in  search  of  the  same, 
plaintiff  read  the  deposition  of  William  Patterson  and  others.  Wil- 
liam Robinson,  clerk  of  the  court,  stated  that  he  was  deputy  clerk  at 
the  time,  and  that  the  record  of  a  power  of  attorney  from  B.  Jones 
to  Thomas  Smyth,  Jr.,  made  by  himself  while  clerk  of  the  court,  was 
a  copy  of  the  original,  and  he  believed  it  to  be  genuine,  for  that  the 
official  signature  of  Abraham  Jones  must  have  induced  him  to  com- 
mit the  same  to  record.  And  it  was  admitted  in  evidence,  though 
forty  years  old ;  and  this  was  held  to  be  a  correct  ruling,  because 
after  the  lapse  of  thirty  years  the  witness  is  presumed  to  be  dead.3 
In  a  petition  for  the  partition  of  land  involving  the  execution  of  the 
will  of  Benajah  Brown,  Sr.,  it  was  held  that  one  of  the  attesting 
witnesses  to  a  will  of  lands  may  prove  its  execution  on  a  trial  at  law, 
and  where  a  witness  to  a  last  will  and  testament  proved  its  due  at- 
testation, by  three  witnesses,  but  had  forgotten  the  name  of  one  of 
them,  having  no  doubt,  however,  that  he  was  a  competent  witness, 

1  Jackson  v.  Gager,  5  Cow.  383  (1826).        3  Winn  v.  Patterson,  9  Pet.  663,  674. 
8  Jackson  v.  Cody,  9  Cow.  140  (1838). 

31 


242  THE  LAW  OF  IDENTIFICATION. 

this  was  held  to  be  sufficient  evidence  of  the  execution  of  the  will  to 
justify  the  court  in  submitting  the  will  in  evidence  for  the  considera- 
tion of  the  jury,  not,  however,  as  conclusive  of  its  validity.1 

Witness  —  recollection  —  name —  circumstances. 

§  342.  In  Pennsylvania  in  1808,  an  action  was  brought  upon  a 
judgment  entered  by  warrant  of  attorney  against  one  Pigott.  A 
joint  commission  was  issued  to  London  for  the  examination  of  wit- 
nesses, with  interrogatories,  etc. ;  depositions  were  taken  and  admitted 
in  evidence,  over  the  objection  of  the  defendant ;  the  depositions 
proved  the  power  of  attorney,  and  the  judgment  was  affirmed.  The 
attesting  witness  to  the  power  of  attorney  testified  that  his  name  was 
subscribed  as  a  witness  and  was  of  his  own  handwriting,  as  was  also 
the  defeasance  of  the  warrant  of  attorney ;  that  on  having  recourse  to 
some  private  minutes  of  his  own  he  found  that  on  the  day  of  the 
date  of  the  said  warrant  he  was  at  a  certain  house  in  London,  where 
he  supposes  it  was  executed ;  that  the  seal  was  an  impression  from 
an  engraving  which  belonged  to  him  ;  and  from  all  the  circumstances 
he  is  convinced  that  he  was  present  and  witnessed  the  execution  of 
the  said  instrument,  and  that  there  was  no  other  subscribing  witness 
to  the  instrument.2 

Bond  —  deputy  sheriff  —  signatures. 

§  343.  An  action  was  brought  upon  a  bond  given  by  one  Luther 
as  deputy  sheriff,  executed  by  him  and  sureties ;  the  bond  was  pro- 
duced on  the  trial.  The  subscribing  witness  testified  that  he  sub- 
scribed his  name  to  the  execution  of  the  bond ;  that  he  remembered 
that  the  sheriff  was,  on  the  day  of  its  date,  taking  bonds  of  his  depu- 
ties ;  that  he  recollected  seeing  some  of  the  obligors  at  the  time ; 
that  he  could  not  say  that  he  saw  Skinner  and  Carpenter  (two  of 
the  obligors),  but  he  presumed  that  he  saw  all  the  obligors  sign  the 
bond,  or  that  they  acknowledged  the  execution  of  it,  or  he  would 
not  have  witnessed  it.  This  was  held  to  be  sufficient.3  An  action 
was  brought  in  England  in  1812,  by  a  sheriff  on  a  bail  bond,  taken 
by  a  lower  sheriff,  who  made  the  caption  to  the  bond ;  it  was  held 
that  he  (the  lower  sheriff)  was  a  competent  witness  to  prove  the  exe- 
cution of  the  bond,  if  the  defendant  and  obligor,  knowing  Ins  situa- 
tion, asked  him  to  become  attesting  witness.  It  was  objected  by  the 
counsel  for  the  defendant,  that  Copeland,  the  bailiff,  was  not  a  com- 

1  Dan  v.  Brown,  4  Cow.  488  (1825).  «  Hall  v.  Luther,  18  Wend.  491  (1835). 

s  Pigott  v.  Holloway,  1  Blnn.  (Pa.)  436 
(1808). 


HANDWRITING  —  SUBSCRIBING  WITNESS.  243 

petent  witness,  as  this  was,  in  substance,  his  own  action,  brought  in 
the  name  of  the  sheriff.  Lord  ELLENBOROUGH  held  as  above  in- 
dicated, that  the  defendant  could  not  take  this  objection,  after  having 
requested  the  witness,  with  full  knowledge  of  the  situation  in  which 
he  stood,  to  attest  the  execution  of  the  bond.1 

Handwriting  of  subscribing  witnesses. 

§  344.  It  has  been  held  in  New  York,  that  the  proof  of  the  hand- 
writing of  a  subscribing  witness  to  a  deed  was  sufficient  evidence  of 
its  execution,  although  the  witness  be  dead;  and  the  party  seeking 
to  establish  the  deed  is  not  bound,  in  addition  to  such  testimony,  to 
prove  the  handwriting  of  the  grantor,  or  other  facts  to  show  his 
identity.  But  it  was  then  said :  "  Whether  proof  of  the  identity  of 
the  grantor  or  obligor  in  addition  to  the  signature  of  the  subscribing 
witness  is  necessary  or  not  is  a  point  very  much  afloat  in  England.'' 
Some  of  the  English  cases  hold  to  the  rule  above  stated,2  while  others 
hold  a  different  rule.3  Lord  Chief  Justice  ABBOTT  held  that  proof 
of  the  signature  of  a  subscribing  witness  was  sufficient,  even  where 
the  obligor  signed  with  his  mark."4  And  NELSON,  Ch.  J.,  of  the  Su- 
preme Court  of  New  York,  said  that  this  has  been  the  uniform  prac- 
tice in  that  State  since  1800.  And  in  an  early  New  York  case  an 
action  was  brought  on  a  bond.  It  was  held  that  where  the  witnesses 
to  the  bond  were  absent,  out  of  State,  proof  of  their  handwriting 
was  sufficient  without  proving  the  signature  of  the  obligor 5 

Proof  of  name  —  when  prima  facie. 

§  345.  But  a  different  rule  was  held  m  Kentucky  in  1833.  It 
was  an  action  upon  an  injunction  bond,  which  was  attested  by  the 
clerk  of  the  court.  It  was  held  that  the  onus  was  on  the  plaintiff ; 
for  if  the  attestation  were  an  official  act,  and  evidence  of  the  signing, 
it  would  not  still  identify  the  individual  as  the  one  who  signed.6 
The  general  rule  on  the  subject  was  clearly  the  other  way ;  upon 
showing  that  the  names  are  identical,  that  alone  was  sufficient  to 
throw  the  onus  upon  the  defendant  to  rebut  the  presumption  raised 
by  the  proof  oi  the  name.7  It  was  sufficient  in  the  first  instance  to 

1  Honey  wood  v.  Peacock,  3  Campb.  196.     v.  Mann,  1  Mood.  &  Malk.  79;  Mitchell 

2  Kimball  v.  Davis,  19  Wend.  437.  And     v.  Johnson,  id.  176. 

see  Parkins  v.  Hawkshaw,  2  Stark.  239;  4  Mitchell  v.  Johnson,  1  Mood.  &  Malk. 

Nelson  v.  Whittall,  1  B.  &  Aid.  19;  Mid-  555. 

dleton  v.  Sandford,  4  Campb.  34;  White-  B  Mott  v.  Doughty,  1  Johns.  Cas.  230; 

locke  v.  Musgrove,  1  Cromp.  &  M.  511.  Sluby  v.  Champlin,  4  Johns.  461. 

3  Adam  v.  Kerr,  1  Bos.  &  Pul.  360;  6Lush  v.  Druse,  4  Wend.  313. 
Gough  v.  Cecil,  1  Selw.  N.  P.  563,  n.;  'Robards  v.  Wolfe,  1  Dana  (Ky.),  155. 
Mil  ward  v.  Temple,  1  Campb.  375;  Page 


244  THE  LAW  OF  IDENTIFICATION. 

raise  the  presumption,  which  will  stand  unless  overcome  or  rebutte  , 
but  may  be  done  by  countervailing  evidence,  but  in  the  absence  of 
any  such  countervailing  evidence,  that  presumption  will  support  a 
verdict,  if  that  be  the  only  question.  And  where  the  name,  resi- 
dence and  profession  is  the  same,  the  onus  is  on  the  defendant  to 
disprove  the  identity.1  And  in  Massachusetts  in  an  indictment  for 
forgery  in  the  execution  of  a  bond  to  dissolve  an  attachment,  the 
judge  instructed  the  jury  that,  although  a  party  might  sign  or 
use  a  fictitious  name,  which  he  had  adopted  for  innocent  purposes, 
he  could  not  acquire  a  right  to  use  it  for  fraudulent  purposes, 
by  so  using  it  any  number  of  times ;  and  that  there  may  be 
a  forgery  by  the  use  of  a  fictitious  name  as  well  as  by  using  a 
person's  own  name,  if  the  intention  exists  to  commit  the  fraud, 
by  deception  as  to  the  identity  of  the  person  who  so  uses  the 
name.2 

Same  —  idem  sonans. 

§  346.  Where  two  persons  had  the  same  name  and  the  same  agent, 
evidence  tending  to  show  that  one  of  them  had  ceased  to  do  busi- 
ness, and  that  the  other  is  in  business  and  had  transactions  with  the 
plaintiff  which  might  have  resulted  in  making  him  a  creditor,  was 
held  to  be  sufficient  to  warrant  a  verdict.3  In  a  Vermont  case,  de- 
cided in  1857,  one  Aaron  J.  JBoge  appeared  in  the  charter  of  Gran- 
ville  (formerly  Kingston)  as  one  of  the  proprietors.  The  name  of  the 
plaintiff's  ancestor  was  Aaron  Jordan  Bogue  ;  but  at  an  early  period 
of  his  life  his  name  had  been  usually  written  Boge.  In  the  proprie- 
tor's records,  Aaron  J.  Boge  in  one  instance,  and  Aaron  Jordan 
Bogue  in  another  was  mentioned  as  one  of  the  proprietors.  It  was 
held  that  the  names  were  prima  facie  to  be  considered  identical  for 
the  purpose  of  establishing  plaintiff's  claim  in  ejectment.4  One 
Henry  V.  Libhart  sued  Bennett  before  a  justice  of  the  peace  on  a 
judgment  rendered  by  another  justice.  On  the  trial  Libhart  pro- 
duced a  record  of  a  judgment  in  favor  of  H.  V.  Libhart,  and  there 
was  no  averment  that  the  plaintiff  was  ever  known  by  that  name, 
nor  was  there  any  evidence  of  the  identity  of  the  plaintiff,  and  that 
Henry  V.  Libhart  was  not  entitled  to  recover  in  an  action  on  a  judg- 
ment in  favor  of  H.  V.  Libhart.5 

i  Russell  v.  Smyth,  9  M.  &  W.  818.  *  Jones  v.  Parker,  20  N.  H.  81. 

8  Com.    v.  Costello,  120   Mass.    369.        *  Bogue  v.  Bigelow,  29  Vt.  179. 
And  see  2  East    P.  C.  941;    Mead  v.        B  Bennett  v.  Libhart,  27  Mich.  489. 
Young,  4  T.  R.  28;  Reg.  v.  Rogers,  8  C. 
&  P.  629;  Com.  v.  Foster,  114  Mass.  311. 


HANDWRITING  —  SUBSCRIBING  WITNESS.  245 

Deed  to  father  or  son  —  same  name. 

§  347.  Where  a  father  and  son  had  the  same  name  and  lived  to- 
gether, and  a  conveyance  of  land  was  made  to  one  of  them  by  name, 
without  designating  whether  it  is  to  the  father  or  the  son  ;  it  was 
held  that  the  law  would  presume  that  the  father  was  intended  as  the 
grantee,  in  the  absence  of  any  proof  to  the  contrary.  And  that  it 
devolved  upon  the  party  claiming  under  the  son,  to  introduce  evi- 
dence sufficient  prima facie  to  rebut  such  presumption,  and  thereby 
the  onus  will  be  shifted  to  the  party  claiming  under  the  father,  and 
then  he  will  be  bound  to  produce  proof  sufficient  to  overcome,  or  at 
least  to  equal  in  probative  force,  the  case  of  the  adverse  party.  And 
it  was  held  to  be  error  for  the  trial  court  to  exclude  from  the  consid- 
eration of  the  jury,  by  instructions,  the  character  and  circumstances 
of  the  occupancy  as  bearing  upon  the  question  whether  the  deed  was 
to  the  father  or  the  son.1 

Parties  to  actions  —  variance  —  name. 

§  348.  A.  B.  being  the  younger  person  of  two  of  the  same  name  resid- 
ing in  the  same  town  brought  an  action  by  the  name  of  A.  B.  only, 
omitting  the  addition  of  junior.  The  court  below  refused  to  allow  him 
to  amend  by  making  the  addition,  and  to  give  evidence  of  a  written 
promise  of  the  defendant  to  the  plaintiff,  by  the  name  of  A.  B., 
junior.  This  was  held  to  be  error.2  Where  there  are  several  per- 
sons of  the  same  name  in  the  same  locality,  and  the  facts  raise  a 
doubt  as  to  the  identity  of  the  person,  the  mere  identity  of  the  name 
will  not  be  sufficient.3  A  declaration  described  a  note  sued  on  as 
having  been  made  by  "  Andrew  A.  Louden,"  and  the  general  issue 
was  pleaded  without  oath.  It  was  held  that  the  production  of  a  note 
signed  by  "  A.  A.  Louden  "  was  insufficient  without  further  proof  of 
identity  to  authorize  a  judgment  in  the  case  for  plaintiff.4 

Identity  of  pilot — collision  of  vessels. 

§  349.  In  an  English  case,  the  action  was  brought  against  William 
Henderson,  the  pilot  of  a  vessel,  for  negligently  navigating  the  ves- 
sel and  causing  a  collision  with  another  vessel.  The  facts  and 
circumstances  under  which  it  took  place  having  been  proved,  it  was 

1  Graves  v.  Col  well,  90111.  612.     Cit-  3  People  v.  Rolfe,  61  Cal.  541;  Hams- 
ing    Lepiot    v.    Browne,    6  Mod.    198;  her  v.  Kline,  57  Pa.  St.  403;  Aultman 
Kincaid  v.  Howe,  10  Mass.  208;  Padgett  v.  Timm,  93  Ind.  158;  Qoodell  v.  Hib- 
v.  Lawrence,   10  Paige,  170;    State  v.  bard,  32  Mich.  48;  State  v.  Moore,  61 
Vittum,  9  N.  H.  519;  2  Whart.  Ev.  1273.  Mo.  276;    Gitt  v.  Watson,  18  id.    274; 

2  Kincaid     v.    Howe,    10    Mass.   203  Hamber  v.  Roberts,  7  M.,  G.  &  S.  861. 
(1813).  4  Louden  v.  Walpole,  1  Ind.  319. 


246  THE  LAW  or  IDENTIFICATION. 

objected  that  no  evidence  had  been  given  that  the  defendant  was 
the  pilot  in  charge  of  the  vessel  at  the  time  she  collided ;  whereupon 
counsel  for  plaintiff  called  out  "  Mr.  Henderson,"  upon  which  a  per- 
son in  court  answered  "  here,"  and  said  "  I  am  the  pilot."  It  was 
proved  by  one  witness  who  had  gone  on  the  vessel  at  the  time  of  the 
collision,  that  he  had  seen  that  person  acting  as  pilot.  This  was 
held  to  be  sufficient  to  identify  the  defendant  as  the  pilot.1 

Name  —  promissory  note  —  suit  for  rent. 

§  350.  It  was  held  in  Indiana  that  where,  in  a  civil  action  on  a 
promissory  note,  the  proof  showed  the  liability  of  a  person  bearing 
the  name  of  the  defendant,  and  there  was  no  countervailing  evidence 
on  the  question  of  identity,  it  was  sufficient  to  establish  defendant's 
liability,2  and  a  similar  rule  is  held  in  England  ;3  and  in  Missouri 
identity  of  name  was  held  to  be  prima  facie  evidence  of  identity  of 
person,  even  where  the  party  was  indicted  for  arson.4  Where  Wil- 
liam J.  Douglas  was  plaintiff  in  an  action  to  recover  rent,  and  the 
defendant  set  up  a  judgment  obtained  in  another  court  against  Wil- 
liam J.  Douglas,  without  averring  the  identity,  it  was  held  that  the 
identity  of  the  parties  is  to  be  presumed  from  the  identity  of  the 
names.5  This  seems  to  be  the  general  rule.  It  is  not  necessary  to 
aver  the  identity  ;  if  the  person  be  not  the  same,  the  proof  of  that 
fact  may  come  from  the  other  side,  and  if  it  does  not,  the  legal  pre- 
sumption will  stand. 

Subscribing  witness  —  proof  of. 

§  351.  Upon  the  subject  of  the  proof  or  identity  of  handwriting, 
it  was  held  in  California  that  an  instrument  in  writing,  executed  and 
attested  by  a  subscribing  witness  in  a  foreign  country,  or  at  a  place 
beyond  the  jurisdiction  of  the  court,  can  be  proved  by  evidence  of 
the  handwriting  of  the  party  who  executed  it.6  It  was  held  in 
Massachusetts  that  a  party  was  not  entitled  to  write  his  signature  in 
the  presence  of  the  jury  for  the  purpose  of  being  compared  with  a 
signature  purporting  to  be  his,  the  genuineness  of  which  is  denied.7 
Where  a  party  signs  a  name  not  his  own,  but  one  which  he  has 

1  Smith  v.  Henderson,  9  M.  &  W.  798.  e  McMinn  v.  Wlielan,  27  Cal.  800.  And 

1  Aultinan  v.  Timm,  98  Ind.  158.  see  Landers  v.  Bolton,  26  id.  894. 

"Hamber  v.  Roberts,  7  M.,  G.  &  8.  T  King  v.  Donahue,   110  Mass.   155. 

861.  Citing  Stanger  v.  Searle,   1    Esp.    14; 

4  State  v.  Moore,  61  Mo.  276.  Keith  v.  Lothrop,  10  Gush.  458.  And  see 

5  Douglas  v.  Dakin,  46  Cal.  49.  Doe  v.  Newton,  5  A.  &  E.  514;  Doe  v. 

Suckermore,  id.  703-5. 


HANDWRITING  —  SUBSCRIBING  WITNESS.  247 

adopted,  using  it  without  intent  to  deceive  as  to  the  identity  of  the 
person  signing,  it  is  not  a  forgery.1 

Photograph  —  writing  —  signature  —  evidence. 

§  352.  Upon  the  issue  of  the  genuineness  of  a  signature,  magni- 
fied photographic  copies  of  the  signature  are  admissible  in  evidence, 
accompanied  by  competent  preliminary  proof  that  the  copies  are  ac- 
curate in  all  respects,  except  as  to  size  and  color.  A  photographer 
who  is  accustomed  to  examine  handwriting  in  connection  with  his 
business,  with  a  view  to  detect  forgeries,  is  qualified  to  give  an  opin- 
ion as  an  expert,  as  to  the  genuineness  of  a  disputed  signature ;  even 
if  his  opinion  is  based  in  part  on  enlarged  photographic  copies  made 
by  himself  of  the  disputed  signature  and  of  admitted  genuine  signa- 
tures of  the  same  person,  which  he  testifies  are  accurate  copies  ex- 
cept as  to  size  and  color.2  As  to  the  photographic  copies  of  hand- 
writing, it  was  held  in  'New  York,  that  a  comparison  of  a  signature  in 
dispute  with  photographic  copies  of  other  writings  for  the  purpose  of 
getting  an  opinion  from  an  expert  as  to  the  character  of  the  signature 
as  real  or  feigned,  where  the  original  from  which  the  copies  were 
made  are  not  brought  before  the  jury,  and  cannot  be  shown  by  other 
witnesses,  should  not  be  permitted,  at  least  where  there  is  no  proof 
as  to  the  manner  and  exactness  of  the  photographic  method  used.3 

Authority  to  sign  the  name  of  another. 

§  353.  An  indenture  having  been  prepared  for  binding  a  boy 
as  an  apprentice,  the  apprentice  and  his  father,  being  unable  to 
write,  desired  a  third  person  to  write  their  names  opposite  two  seals, 
and  he  did  so.  The  indenture  was  not  read  over  to  them  before 
signing.  The  apprentice  immediately  took  and  carried  the  indenture 
to  the  master,  and  left  it  with  him  ;  and  afterward  stated  that,  when 
he  did  so,  he  considered  himself  bound  by  the  terms  of  the  inden- 
ture, and  that  he  went  into  service  under  it.  Under  these  circum- 
stances it  was  held  that  the  indenture  was  sufficiently  executed  and 
delivered  because  they  authorized  their  names  to  be  affixed  to  the 
indenture.4  Perhaps  the  decision  of  this  case  attached  too  much  im- 
portance to  the  admissions  of  the  minor.* 

1  Rex  v.  Bontien,  Russ.  &  Ry.  260  and  3  Hynes  v.  McDermott,  82  N.  Y.  41 
cases  there  cited.  (1881). 

*  Marcy  v.  Barnes,  16  Gray,  161  4  Rex  v.  Inhab.  of  Longnor,  4  Barn.  & 

Adol.  647. 

*In  Ingram  v.  Hall,  1  Hayw.  (N.  C.)  207,  the  court  said:  "  If  the  deed  be  lost,  and  that  appear 
to  the  court,  then  the  copy  shall  be  read,  as  affording  a  presumption.  But  if  there  be  no  copy, 
then  an  abstract  may  be  admitted,  that  affording  a  probable  presumption;  and  if  no  abstract, 


248  THE  LAW  OF  IDENTIFICATION. 

Subscribing  witness  to  promissory  note. 

§  354.  The  subscribing  witness  to  a  promissory  note  in  Massachu- 
setts having  removed  beyond  the  limits  of  the  Commonwealth,  other 
evidence  was  held  to  be  admissible  to  prove  the  due  execution  of 
the  promissory  note  by  establishing  the  handwriting  of  such  wit- 
ness. Comparison  of  the  contested  signature  of  a  party  to  a  written 
contract  with  other  writings  proved  or  admitted  to  be  genuine,  was 
said  to  be,  by  the  common  law  of  that  Commonwealth,  proper  evi- 
dence. It  was  insisted  that  the  handwriting  of  the  subscribing 
witness  ought  to  have  been  proved  before  the  plaintiff  should  have 
been  permitted  to  resort  to  other  evidence.  But  the  court  said  :  "  As 
the  instrument  in  question  is  good  without  a  subscribing  witness,  we 
do  not  think  this  strictness  necessary,  however  it  might  be  in  rela- 
tion to  deeds  or  instruments  under  seal,  where  something  more  is 
necessary  to  be  proved  than  the  mere  signature  of  the  party.1 

Stjectment  —  notice  —  witness  to. 

§  355.  But,  in  an  action  of  ejectment  in  England,  where  it  ap- 
peared that  a  notice  to  quit  had  been  given  in  writing,  signed  by 
the  party  giving  it  and  attested  by  a  subscribing  witness ,  it  was  held 
that  it  must  be  proved  by  calling  that  witness,  or  his  absence  must 
be  accounted  for.  Proof  that  it  was  served  on  the  tenant,  that  he 
read  it,  and  did  not  object  to  it,  was  held  to  be  insufficient  as  a  ser- 
vice of  notice .  On  this  point,  Lord  ELLENBOROUGH,  C.  J. ,  said : 
"  The  objection  to  it  as  a  parol  notice  is,  that  it  appears  to  be  a  writ- 
ten one,  and  as  a  written  one  that  the  handwriting  of  the  party  was 
not  proved  by  calling  the  attesting  witness.  It  is  among  the  first 
principles,  that  if  the  handwriting  must  be  proved,  and  there  is  an 
attesting  witness,  that  witness  must  be  called  or  his  absence  ac- 
counted for."  DAMFIEB,  J.,  said  :  "  The  execution  of  a  bond  is  a 
fact,  but  the  obligor's  subscription  must  be  proved  by  the  attesting 
witness,  if  there  be  one."2 

1  Homer  v.  Wallis,  11  Mass.  309.  8  Doe  v.  Durnford,  2  Maule  &  S.  62. 

parol  evidence  of  the  contract  may  be  offered.  The  true  Intent  of  the  parties  to  be  regulated 
by  that  contract,  shall  not  be  defeated  and  justice  overturned  so  long  as  any  evidence  remains 
which  throws  any  glimmering  of  light  on  the  subject,  from  which  a  jury  may  be  enabled  to  infer 
the  real  state  of  the  transaction.  The  subscribing  witnesses  in  the  case  above  stated  are  not 
required,  because  the  deed  cannot  be  proved  without  them,  as  has  been  already  evinced,  but  be- 
cau«e,  were  they  not  produced,  the  defendant  would  be  deprived  of  the  cross-examination  of  those 
persons  he  had  provided  to  give  testimony  for  himself,  as  well  as  for  the  other  party;  and  who, 
if  produced,  upon  such  cross-examination,  would,  perhaps,  give  material  testimony  for  him.  But 
if  the  subscribing  witnesses  are  not  to  be  had,  the  law  chooses  the  least  of  two  evils.  It  is  better 
to  dispense  with  the  witnesses  and  receive  other  proof  which  may  be  sufficient,  than  adhere 
to  the  rule  when  they  cannot  be  had,  and  so,  at  any  rate,  destroy  the  deed;  thus,  if  the  obligee 
removes  the  witness,  his  acknowledgment  that  he  executed  the  deed  is  proof.11 


HANDWRITING  —  SUBSCRIBING  WITNESS.  249 

Interested  witness  —  when  incompetent. 

§  356.  Where  a  subscribing  witness  becomes  interested  as  a  party 
to  the  proceeding,  or  otherwise,  and  thus  becomes  incompetent  to 
testify  in  the  cause,  then  other  evidence  may  be  introduced  to  prove 
the  due  execution  of  the  paper ;  for  instance,  where  goods  sold  were 
attached  as  the  property  of  the  vendor,  and  were  then  replevied  by 
the  vendee,  and  the  subscribing  witness  to  the  bill  of  sale  of  the 
goods  became  a  surety  on  the  replevin  bond.  At  the  trial  of  the  re- 
plevin the  officer  (who  was  the  defendant)  objected  to  the  introduction 
of  such  witness  by  the  vendee  to  prove  the  execution  of  the  bill  of 
sale,  upon  the  ground  that  he  was  surety  on  the  bond  when  the  vendee 
offered  to  procure  a  new  surety,  to  which  the  defendant  refused  his 
consent.  It  was  held  that  the  execution  of  the  bill  of  sale  might  be 
proved  by  other  evidence  than  the  testimony  of  the  attesting  wit- 
ness ;  and  that  the  vendee  was  not  bound  to  produce  the  vendor  for 
that  purpose.1 

Witness  —  search  for  —  diligence  required. 

§  357.  In  an  action  on  a  bond  in  England,  evidence  was  offered 
to  show  that  proper  and  due  diligent  inquiry  had  been  made  to  find 
and  procure  the  testimony  of  one  of  the  subscribing  witnesses  at 
the  place  of  residence  of  the  obligor  and  obligee,  and  that  no  account 
could  be  obtained  of  such  a  person,  who  he  was,  where  he  lived,  or 
any  circumstances  relating  to  him.  The  court,  upon  this  proof,  held 
that  it  was  sufficient,  and  that  the  party  then  had  the  right  to  come 
in  with  the  proof  of  the  handwriting  of  the  other  subscribing  wit- 
ness, who  had  since  become  interested  as  administratrix  to  the  obli- 
gee and  was  the  plaintiff  on  the  record  in  this  case.  Did  the  proof 
of  her  signature  prove  the  execution  of  the  bond  ?  By  no  means ; 
it  proved  merely  the  attestation.  Why  not  prove  the  handwriting 
of  the  obligor  ?  But  the  technicality  must  be  pacified.  LAWRENCE, 
J.,  said  :  u  It  is  now  admitted,  as  a  general  rule,  that  proof  of  the 
acknowledgment  of  the  debt  is  not  sufficient  in  an  action  on  a  bond, 
withou  calling  the  subscribing  witness.  The  only  question  now  is 
on  that  part  of  the  report  of  the  learned  judge  which  states  that  he 
was  not  satisfied  that  sufficient  inquiry  had  been  made  after  Richard 
Bates,  one  of  the  subscribing  witnesses,  in  order  to  let  in  the  proof 
of  the  handwriting  of  the  other  subscribing  witness,  who  has  since 
become  one  of  the  parties  interested.  Now,  no  doubt  a  subscrib- 

1  Haynes  v.  Rutter,  24  Pick.  242. 

32 


250  THE  LAW  OF  IDENTIFICATION. 

ing  witness'  handwriting  may  be  proved,  if  diligent  inquiry  has 
been  made  after  him  and  he  cannot  be  found.  Then  the  question 
is,  whether  it  be  not  sufficient  to  inquire  after  a  witness  whom  no- 
body knows  at  the  place  where  the  obligor  and  obligee  lived  '(  It 
is  stated  that  diligent  inquiry  was  made  after  the  witness  there,  but 
without  success  ;  then  where  else  were  the  parties  to  inquire  ?  It 
does  seem  that  they  have  done  every  thing  that  could  have  been  ex- 
pected of  them  ;  and  if  so,  I  think  they  ought  to  have  been  let  into 
the  secondary  evidence  offered."1  It  would  seem  to  be  difficult  to 
lay  down  a  general  rule  as  to  the  nature  and  degree  of  diligence  re- 
quired. 

Same  —  diligence  —  rule  in  United  States  Supreme  Court. 

§  358.  An  action  was  brought  to  recover  household  goods.  Plain- 
tiffs produced  in  evidence,  in  support  of  their  title  to  the  goods,  a  cer- 
tain paper  signed  by  one  John  "Withers,  to  which  John  Pierson  had 
subscribed  his  name  as  a  witness,  and  offered  parol  evidence  to  prove 
that  the  subscribing  witness  "  had,  upward  of  a  year  ago,  left  the 
District  of  Columbia,  and  that  before  he  left  the  said  district,  he  de- 
clared that  he  should  go  northward,  that  is  to  say,  to  Philadelphia 
or  New  York,  and  said  he  had  a  wife  in  New  York.  That  the  sub- 
scribing witness  went  from  said  district  to  Norfolk,  and  that  when  he 
got  there,  he  declared  that  he  should  go  on  further  to  the  south,  but 
where  was  not  known,  and  that  he  has  not  been  heard  of  by  the 
witness  for  the  last  twelve  months."  It  appeared  that  a  snbposna 
had  been  issued  in  this  case  for  him,  directed  to  the  marshal  of  the 
District  of  Columbia,  but  he  could  not  be  found.  Plaintiffs  then 
offered  to  prove  the  handwriting  of  the  subscribing  witness  and  also 
of  the  said  John  Withers  to  the  said  writing,  but  the  court  refused 
to  permit  him  to  produce  evidence  of  the  handwriting  of  the  sub- 
scribing witness,  and  also  refused  to  permit  him  to  prove  the  hand- 
writing of  John  Withers,  otherwise  than  by  the  testimony  of  the 
said  subscribing  witness ;  to  which  refusal  and  ruling  the  plaintiffs' 
counsel  excepted.  This  presented  the  rule  in  its  full  force,  and  as 
applied  in  this  case,  put  it  to  a  practical  test,  and  which,  perhaps, 
amounted  to  a  denial  of  justice ;  and  if  it  did  not,  it  was  most  cer- 
tainly not  the  fault  of  the  rule.  MARSHALL,  Ch.  J.,  said  :  "  That 
the  court  had  some  difficulty  upon  the  point.  The  general  rule  of 
evidence  is,  that  the  best  evidence  must  be  produced  which  the  na- 
1  Cunliffe  v.  Sefton,  2  East,  183. 


HANDWRITING  —  SUBSCRIBING  WITNESS.  251 

ture  of  the  case  admits,  and  which  is  in  the  power  of  the  party.  In 
consequence  of  that  rule,  the  testimony  of  the  subscribing  witness 
must  be  had  if  possible.  But  if  it  appear  that  the  testimony  of  the 
subscribing  witness  cannot  be  had  the  next  best  evidence  is  proof  of 
his  handwriting.  In  the  present  case  it  does  not  appear  to  the  court 
that  the  testimony  of  the  subscribing  witness  could  not  have  been 
obtained  if  proper  diligence  had  been  used  for  that  purpose.  It  does 
not  appear  that  the  witness  had  ever  left  Norfolk.  It  is  not  stated 
that  any  inquiry  concerning  him  had  ever  been  made  there.  If  such 
inquiry  had  been  made,  and  he  could  not  be  found,  evidence  of  his 
handwriting  might  have  been  permitted.  But  as  the  case  appears  in 
the  bill  of  exceptions,  the  court  below  did  not  err."1 

Subscribing  witness  —  secondary  evidence  —  general  rule. 

§  359.  "Where  the  name  of  a  fictitious  person  is  inserted  as  a  sub- 
scribing witness  to  an  instrument,  it  may  be  proved  by  other  evi- 
dence, and  there  is  no  doubt  but  that  in  such  cases  you  may  treat 
the  instrument  as  though  it  was  unattested,  and  prove  its  execution 
by  any  other  competent  testimony,  by  proving  the  handwriting  of 
the  maker  of  the  instrument,  or  his  acknowledgment  thereof.2  The 
general  rule  seems  to  be,  both  in  this  country  and  England,  that, 
where  there  is  a  subscribing  witness  to  an  instrument,  his  hand- 
writing should  be  proved  as  the  best  secondary  evidence,  and  in  the 
first  instance,  in  the  absence  of  his  testimony,  and  before  the  hand- 
writing of  the  maker  or  his  acknowledgment  can  be  proved ;  either 
of  which  is  secondary  evidence ;  this  is  making  degrees  and  drawing 
distinctions  in  secondary  evidence.  This  rule  requires,  that  before 
you  can  prove  the  signature  of  the  maker  or  obligor,  you  must  give 
a  sufficient  reason  for  not  proving  the  handwriting  of  the  subscribing 
witness.  It  is  certainly  difficult  to  perceive  any  reason  in  such  a 
rule ;  the  only  idea  advanced  as  a  substitute  for  a  reason  to  support  the 
rule  is,  that  the  presumption  is  that  he  would  not  attest  a  falsehood ; 
admitting  that,  and  you  have  only  raised  a  presumption,  you  have 
not  proved  the  execution  of  the  instrument,  you  have,  at  most,  proved 
only  the  attestation,  yet  it  is  taken  by  the  courts  as  proof  of  the  due 

1  Cooke  v.  Woodrow,  5  Cranch,  13.  Nott  &  McC.  400;  M'Pherson  v.  Rath- 

2  Handy  v.  State,  7  Harr.  &  J.  42;  Pel-  bone,  11  Wend.  99;  Gregory  v.  Baugh, 
letreau  v.  Jackson,  11  Wend.  123;  Gil-  4  Rand.  636;  Whittemore  v.  Brooks,  1 
liam  v.  Perkinson,  4  Rand.  325;  Jackson  Greenl.  57;    Miller's  Estate,  3  Rawle, 
v.  Waldron,  13  Wend.  183;  Farnsworth  318;  Raines  v.   Philips,  1  Leigh  (Va.), 
v.  Briggs,  6   N.    H.   561;   Holloway  v.  483;    Bennet  v.   Robinson,    3   Stew.    & 
Laurence,  1  Hawks,  49;  Clark  v.  Sander-  Port.  229;  Boyer  v.  Norris,  1  Harring- 
son,  3  Binn.  192;   Duncan  v.  Beard,  2  ton,  22. 


252  THE  LAW  OF  IDENTIFICATION. 

execution  of  the  instrument ;  and  they  blindly  follow  an  erroneous 
English  precedent ;  when  the  plain,  reasonable  and  safe  course  lies 
open  before  them,  to  prove,  in  the  first  instance,  the  signature  of  the 
maker  or  obligor.  The  New  York  courts  seem  to  have  fixed  the 
rule  in  their  enlightened  system  of  jurisprudence  as  firm  as  the  laws 
of  the  Modes  and  Persians ;  and  the  Supreme  Court  of  the  United 
States  adhere  to  it  with  a  commendable  tenacity.  But  Massachu- 
setts, Pennsylvania  and  a  few  other  States  evince  a  disposition  to 
recede  from  it. 

Same  —  conflict  —  rule  as  to  handwriting. 

§  360.  As  we  have  just  suggested,  when  the  maker  or  obligor  of 
an  instrument  is  dead,  or  denies  his  signature,  and  the  subscribing 
witness  is  dead  or  absent,  would  it  not  be  better,  safer,  more  direct 
and  satisfactory  to  make  direct  proof  of  the  handwriting  of  the  maker 
or  obligor  than  that  of  the  subscribing  witness  ?  This  is  the  view 
taken  by  the  courts  of  Massachusetts  and  Pennsylvania,1  and  sub- 
stantially held  in  North  Carolina,2  Yirginia,3  Delaware,4  and  Mary- 
land. 5  But  the  former  rule,  requiring  proof  of  the  signature  of  the  at- 
testing witness,  as  we  remarked,  is  established  in  New  York,6  and  by 
the  Supreme  Court  of  the  United  States,7  and  in  England.8  Some  of 
the  courts  seem  to  draw  a  distinction  in  the  requirement  in  the  proof 
when  an  instrument  is  under  seal,  or  when  it  requires  a  subscribing 
witness,  and  are  less  rigid  in  the  enforcement  of  the  rule  when  the  in- 
strument is  a  mere  promissory  note ;  and  yet  the  reason  for  this 
distinction  does  not  seem  at  all  apparent.9  It  has  been  frequently 
held  that  where  it  becomes  competent  to  prove  the  signature  of  the 
maker  or  obligor,  you  may  then  prove  his  declarations,  admissions  or 
confessions  in  relation  to  the  instrument  in  question.10  In  an  action 
of  ejectment  in  New  York,  where  a  bond  was  signed  by  several  ob- 
ligors, and  it  came  collaterally  in  question,  and  the  name  of  one  of 
the  obligors  and  one  of  the  witnesses  was  the  same,  and  the  judge 

1  Hamilton    v.  Marsden,  6  Binn.   45;  M'Pherson  v.  Rathbone,  11  Wend.  96; 

Clark  v.  Sanderson,  3  id.  192;  M'Qennis  Pelletreau  v.  Jackson,  id.  110. 

v.  Allison,  10  S.  &  B.  199.  '  Crane  v.  Morris,  6  Pet.  598;   Cooke 

8  Jones  v.  Blount,  1   Hayw.  (N.    C.)  v.  Woodrow,  5  Crancli,  13. 

238;  Holloway  v.  Laurence,  1  Hawks,  8  Crosby  v.  Percy,  1  Taunt.  364. 

49;  Irving  v.  Irwing,  2  Hayw.  (N.  C.)  27.  •  Whitaker  v.  Salisbury,  15  Pick.  534; 

8Gilliam  v.  Perkinson,  4  Rand.  325;  Homer  v.  Wallis,  11  Mass.  809. 

Gregory  v.  Baugh,  id.  636.  "Miller's  Estate,  3  Rawle,  818;Hollo- 

4Boyer  v.  Norris,  1  Harrington,  22.  way  v.  Laurence,  1  Hawks,  49;  Taylor 

8  Handy  v.  State,  7  Harr.  &  J.  48.  v.  Meekly,  4  Yeates  (Pa.),  79;  Irving  v. 

•  Jackson  v.  Waldron,  13  Wend.  178;  Irwing,  2  Hayw.  (N.  C.)  27;  Conrad  v. 

Farrow,  5  Watts,  536. 


HANDWRITING  —  SUBSCRIBING  WITNESS.  253 

at  the  trial  admitted  the  bond  to  be  read  in  evidence,  upon  the  proof  of 
the  handwriting  of  the  other  witness  who  was  shown  to  be  dead,  with- 
out requiring  the  absence  of  the  other  witness  to  be  accounted  for;  this 
was  held  to  be  error  ;  and  that,  in  the  absence  of  proof,  he  was  not  au- 
thorized to  say,  from  the  identity  of  the  name,  that  the  obligor  and  the 
witness  were  the  same  person,  thus  adhering  strictly  to  the  rigid  rule.1 

Proof  of  receipt  —  common  carrier  —  early  rule. 

§  361.  An  action  of  assumpsit  was  brought  on  written  agreement, 
dated  May  23,  1822,  by  which  defendant's  testator  acknowledged 
the  receipt  of  twenty-eight  bales  of  cotton,  which  he  undertook  to 
transport  to  Charleston  as  soon  as  possible,  and  for  the  freight  to  take 
one  James  Biddie  "for  pay."  The  declaration  also  contained  counts 
on  a  general  undertaking  by  the  defendant's  testator  as  a  common 
carrier.  Damages  were  claimed  as  the  result  of  delay  and  negligence, 
etc.  Defendant  pleaded  the  general  issue  and  the  statute  of  limita- 
tions. In  commenting  upon  the  proof,  JOHNSON,  J.,  said :  "  Now, 
the  only  proof  of  the  execution  of  the  receipt  by  the  defendant's 
testator  was  that  of  a  witness  who  saw  him  sign  a  paper,  stated  to 
him  to  contain  similar  contents,  but  he  did  not  pretend  to  identify 
the  paper  itself,  either  by  the  handwriting,  for  he  was  incompetent 
to  judge  of  that,  or  by  any  mark  ;  and  for  any  thing  that  appears, 
the  defendant's  testator  was  accustomed  to  write,  and  his  genuine 
signature  might  have  been  known  to  many.  This  evidence  was, 
therefore,  incompetent,  inadmissible  and  proved  nothing.  There  was, 
therefore,  no  proof  of  a  special  agreement.2 

Rule  as  to  admitting  secondary  evidence  of  signature. 

§  362.  The  rule  prevails  very  generally,  as  we  have  seen,  that  dili- 
gent inquiry  must  be  made  for  the  subscribing  witness  before  you 
can  prove  his  handwriting  (as  though  it  was  necessary  to  prove  his 
handwriting  at  all),  but  when  it  is  relied  upon,  it  is  not  necessary  to 
show  that  he  is  dead  or  out  of  the  country,  it  is  enough  to  show  that 
he  is  beyond  the  process  and  jurisdiction  of  the  court,  and  then  you 
could  invoke  the  aid  of  secondary  or  inferior  evidence  to  prove  the 
due  execution  of  the  paper.3  Further  comment  upon  the  glaring 
absurdity  of  such  a  rule  is  unnecessary. 

1  Jackson  v.  Christman,  4  Wend.  278.  383;    Selby  v.    Clark,   4  Hawks,   265; 

2  Hunter v.Glenn,  1  Bailey  (S.C.),  542.  M'Pherson  v.  Rathbone,  11  Wend.  98; 

3  Sluby  v.  Champlin,  4  Johns.461 ;  Peo-  Ungles  v.  Graves,  2  Blackf.  191;  Pel- 
pie  v.  Rowland,  5  Barb.  449;    Clark  v.  letreau  v.  Jackson, 11  Wend.123;  Hemp- 
Sanderson,  3  Binn.  192;  Foote  v.  Cobb,  stead  v.  Bird,  2  Day,    293;    Homer  v. 
18  Ala.  585;  Jackson  v.  Gager,  5  Cow.  Wallis,  11  Mass.  309. 


254  THE  LAW  OF  IDENTIFICATION. 

Search  for  attesting  witness. 

§  363.  Where  the  subscribing  witness  to  an  instrument  cannot  be 
found  upon  diligent  inquiry  it  will  be  the  same  as  though  there  were 
no  attesting  witness,  or  as  though  he  were  dead  or  absent  from  the 
State,  and  evidence  may  be  let  in  to  prove  his  signature,  and  estab- 
lish the  execution  of  the  instrument,  to  go  in  evidence  to  the  jury 
for  their  consideration,  but  not  as  conclusive  of  the  fact.1  In  an 
action  of  debt,  one  Jones,  the  attorney,  was  attesting  witness  ;  his 
signature  was  proved  upon  the  ground  that  he  could  nowhere  be 
found,  after  diligent  inquiry.  It  appeared  that  a  month  before  the 
trial,  application  was  made  to  the  defendant  to  admit  the  execution 
of  the  bond  ;  but,  before  defendant  decided  to  do  so,  a  fortnight  be- 
fore the  trial,  inquiry  was  made  for  Jones,  of  his  agent  in  London, 
and  of  his  clerk,  but  neither  could  tell  where  he  was  to  be  found. 
Five  or  six  days  before  the  trial,  inquiry  was  made  at  Jones'  residence; 
but  neither  his  wife,  his  servant  or  his  brother  could  state  where  he 
was.  On  the  llth  of  July,  and  three  days  before  the  trial,  his  clerk 
received  a  letter  from  him,  but  this  did  not  disclose  his  retreat ;  and  a 
bailiff,  from  whom  he  had  escaped,  stated  that  search  had  been  made 
for  him  a  twelvemonth  in  vain.  This  was  held  sufficient,  and  the  evi- 
dence of  his  hand  writing  was  held  to  have  been  properly  received.2 

Same  —  where  the  witness  disappears. 

§  364.  In  an  action  on  a  bond,  witnessed  by  one  William  Wrang- 
ham,  an  attorney  who  had  an  office  in  Seething  Lane,  and  resided 
with  his  family  at  Sydenham.  It  was  an  action  on  a  post-obit  bond ; 
and  it  appeared  that  this  attesting  witness  was  not  found,  and  they 
undertook  to  show  that  he  had  disappeared,  but  the  search  was  held 
to  be  insufficient  to  let  in  the  secondary  evidence.  Lord  MANSFIELD 
said :  "  The  balance  of  convenience  was  in  favor  of  extending  the 
rule,  and  that  more  inconvenience  would  result  from  excluding  the 
secondary  evidence  than  from  admitting  it.  Nor  was  this  doctrine, 
as  had  been  usually  supposed,  a  modern  innovation.  In  an  anony- 
mous case  (12  Mod.  607),  which  had  been  overlooked  in  the  recent 
discussions  upon  this  subject,  Lord  HOLT  laid  down  the  rule  that  'in 
debt  or  bond,  upon  issue  of  non  est  factum,  if  the  plaintiff  prove 
the  witnesses  dead,  beyond  the  sea,  or  that  he  had  made  strict  iii- 

1  Jackson     v.    Root,    18    Johns.    60;  lin,  4  Johns.  461;    Jackson   v.  Cody,  9 

Spring  v.  Ins.  Co.,  8  Wheat.  269;  Jack-  Cow.  140;  Baker  v.  Blount,  2  Hayw.  (N. 

son   v.   Qager,   5  Cow.   883;    Jones  v.  C.)404;  Ingram  v.  Hall,  1  Id.  207;  Jack- 

Cooprider,  1  Blackf.  47;    Clark  v.  San-  son  v.  Chamberlain,  8  Wend.  620. 

dereon,  8  Binn.  192;   Sluby  v.   Champ-  8  Morgan  v.  Morgan,  9  Bing.  359. 


HANDWRITING  —  SUBSCRIBING  WITNESS.  255 

quiry  after  them  and  cannot  hear  of  them  he  shall  be  let  in  to  prove 
their  bond.  Lord  ELLENBOROUGH  said :  "  Upon  these  authorities  I 
will  admit  the  secondary  evidence  if  you  show  that  you  could  not  by 
any  means  find  out  the  attesting  witness.  But  I  shall  watch  very 
narrowly  your  proof  of  search.  This  extension  of  the  rule  may  lead 
to  dangerous  consequences.  If  the  attesting  witness  knows  too  much 
of  the  transaction,  and  his  examination  would  hazard  the  validity  of 
the  deed,  he  may  be  sent  out  of  the  way,  and  we  may  not  be  amused 
at  the  trial  with  an  account  of  his  having  absconded."  The  testimony 
was  let  in.1 

Diligent  search  for  witness  —  what  is  ? 

§  365.  In  an  action  of  assumpsit  on  a  written  agreement,  where 
the  attesting  witness  to  the  execution  of  it  was  not  produced  at  the 
trial,  it  was  held  sufficient  to  let  in  the  handwriting,  to  prove  by  a 
person  who  knew  him,  but  had  not  seen  him  for  eighteen  months, 
that  at  the  request  of  the  plaintiffs  attorney  he  had  made  inquiry  for 
him,  at  coffee-houses  and  other  places  where  he  thought  he  might 
hear  from  him,  but  without  success ;  and  that  it  was  not  necessary 
to  show  that  inquiry  had  been  made  of  both  the  parties  who  had 
executed  the  agreement.2  As  to  what  amounts  to  proper  and  due 
diligence  and  inquiry  to  let  in  the  proof  of  the  handwriting  of  the  at- 
testing witness,  as  secondary  evidence,  under  this  rule,  as  we  see  it  laid 
down  by  the  courts,  it  seems  that  no  precise  or  definite  rule  or  guide 
can  be  laid  down,  but  each  case  must  be  made  to  depend  upon  its  own 
particular  circumstances ;  that  it  will,  however,  be  snificient,  generally, 
if  he  should  go  to  the  place  where  the  instrument  was  executed,  if  he 
knows  where  that  is,  and  make  diligent  inquiry  there,  and  the 
place  where  the  parties  reside  who  executed  the  instrument,  and  if 
unsuccessful  in  this,  it  would  seem  sufficient  ;3  and  circumstances 
might  vary  this  rule  very  materially. 

Same  —  degree  of  search  —  good  faith. 

§  366.  But  the  inquiry,  search  and  effort  to  secure  the  attendance 
of  the  attesting  witness  to  identify  the  signature  and  execution  of 
the  instrument  must  be  bona  fide  and  without  any  design  to  over- 

1  Wardell  v.  Fermor,   2  Campb.  282.     Farrow,  5  Watts,  536;  Evans  v.  Curtis, 

2  Evans  v.  Curtis,  2  Carr.  &  P.  296.      2  Carr.  &  P.  296;  Morgan  v.  Morgan,  9 
8  Jackson      v.    Cody,    9    Cow.    140  ;    Bing.  359;  Wardell  v.  Fermor,  2  Campb 

M'Gennis    v.    Allison,   10    Serg.   &  R.     282  ;  Whittemore  v.  Brooks,  1  Qreenl! 
199  ;    Crosby  v.  Percy,  1   Taunt,  365;    59;  Mills  v.  Twist.  8  Johns.  121. 
Cunliffe  v.  Sefton,  2  East,  183;  Conrad  v. 


256  THE  LAW  OF  IDENTIFICATION. 

look  the  witness  ;  in  short,  there  must  be  no  fraud,  collusion,  evasion 
or  subterfuge,  or  intent  to  keep  the  witness  out  of  the  way,  as  the 
court  will  watch  very  narrowly  the  proof  of  search  and  inquiry.1 
But  the  declaration  of  the  attesting  witness  as  to  the  place  of  his  resi- 
dence, and  as  to  inquiries  made  for  him  at  his  late  residence,  may  be  re- 
ceived in  evidence  to  account  for  his  non-production.2  It  was  held  that 
to  dispense  with  the  testimony  of  the  attesting  witness,  his  removal 
from  the  State  must  be  shown  by  the  evidence  of  a  person  residing 
at  the  place  of  his  former  residence,  or  from  information  there  derived. 
A  co-obligor  was  not  permitted  to  prove  the  execution  of  a  bond,  un- 
less after  due  diligence  the  party  has  failed  to  obtain  proof  of  the 
handwriting  of  the  witness. 

When  contract  proved  without  writing. 

§  367.  Where  the  contract  or  agreement  has  been  reduced  to 
writing  by  the  parties  and  signed  by  them,  it  has  been  generally 
supposed  to  contain  all  the  stipulations  of  such  contract,  and  to  con- 
stitute the  only  means  of  making  the  proof  of  such  contract  or 
agreement.  But  this  is  not  always  true ;  as  a  rule  it  has  its  excep- 
tions, as  it  is  not  necessarily  true  as  to  all  the  matters  to  which  it 
relates.  But  the  transaction,  though  it  may  have  been  committed 
to  writing,  may  often  be  sustained  by  evidence  independent  of  the 
writing.  But  where  it  is  the  best  evidence,  it  must  be  produced,  un- 
der the  well-recognized  rule  requiring  the  best  evidence,  or  to  be 
properly  accounted  for  before  secondary  evidence  is  admissible.3 

Writing  —  knowledge  of— how  acquired. 

§  368.  But  when  proof  can  be  made  independent  of  the  writing, 
if  it  is  called  for  it  must  be  produced  or  accounted  for,  because  as 
to  transactions  of  matters  to  which  the  instrument  directly  relates  it 
is  the  primary  evidence.4  Knowledge  of  handwriting  is  a  matter  of 
the  first  importance,  to  enable  a  witness  to  give  reliable  testimony ; 

'Jackson    v.  Chamberlain,  8   Wend.  Prevost,  7  La.  274;  Grubbs  v.  M'Clatchy, 

620;  Wardell  v.  Fermor,  2  Campb.  282;  2  Yerg.  432;   Boynton  v.  Rees,  8  Pick. 

Burt  v.  Walker,  4  B.  &  Aid.  697;  Mills  329;   Condict  v.  Stevens,  1  Monroe,  74; 

v.  Twist,  8  Johns.  121;  Baker  v.  Blount,  M'Kinney  v.  Leacock,  1   Serg.  &  R.  27; 

2  Hayw.  (N.  C.)  404;  Hill  v.  Phillips,  5  United  States  v.  Porter,  3  Day,  283. 
Carr.  &  P.  356;  Kay  v.  Brookman,  3  id.        4  Wiggins   v.    Pryor,    C  Porter,   430; 

555.  Hart  v.  Yunt,  1  Watts  (Pa.),   253;  Van 

a  Van     Dyne  v.    Thayre,    19  Wend.  Deusen  v.  Frink,  15  Pick.  449;  Northrup 

162;  People  v.  Royland,  5  Barb.  449;  v.  Jackson,  13  Wend.  86;   Raymond  v. 

State  Bank  v.  Seawell,  18  Ala.  616.  Sellick,  10  Conn.  480;  Sebree  v.  Dorr, 

3  Van   Dyne  v.  Thayre,  10  Wend.  163;  9   Wheat.   558;    Brush   v.    Taggart,    7 

Avery  v.  Batters,  2  Fairf.  404;    Van-  Johns.  19;   Bloxani  v.  Elsee,  1  Carr.  &  P. 

horn  v.  Frick,  8  Serg.  &  R.  278;  Camp-  558;  Wilmer  v.  Harris,  5  Harr.  &  J.  3; 

bell  v.  Wallace,  3  Yeates,  271;  Davis  v.  Cary  v.  Campbell,  10  Johns.  863. 


HANDWRITING  —  SUBSCRIBING  WITNESS.  257 

and  that  knowledge  may  be  acquired  in  various  ways,  and  by  many 
means,  as  by  seeing  the  party  sign  the  very  signature  in  dispute,  or 
by  seeing  him  write  his  name  at  any  time ;  by  carrying  on  an  epistolary 
correspondence  with  the  party ;  by  seeing  much  of  his  writing  in 
business  transactions,  or  official  business ;  by  handling  many  bank 
notes  one  may  become  familiar  with  the  signature  of  the  president 
and  cashier  of  a  bank,  etc.,  and  then  by  comparison,  and  other  modes 
not  here  mentioned,  where  the  question  is  the  identity  of  the  signa- 
ture. Most  of  these  rules  are  now  well  recognized.  Formerly  they 
were  more  restricted.1  It  is  now,  in  fact,  not  very  material  how  or 
by  what  means  the  witness  may  have  acquired  his  knowledge  of  the 
handwriting  in  question.  The  real  question  is,  and  the  true  test  for 
determining  the  admissibility  of  the  testimony  on  the  subject  is, 
whether  he  has  adequate  knowledge  of  the  genuine  handwriting.2 
And  the  jury  may  form  their  judgment  from  a  comparison  of  the 
writing  in  dispute  with  that  shown  to  be  genuine.3 

Knowledge  acquired  from  examining  papers. 

§  369.  The  rule  which  we  have  just  seen  generally  prevails  where 
the  witness  has  never  seen  the  party  write,  nor  even  had  correspond- 
ence with  him,  but  is  yet  able  to  testify  from  other  authenticated  pa- 
pers seen  or  received  and  examined  in  the  course  of  business,  in  busi- 
ness relations  or  official  matters.4  One  Sharp  died,  as  it  was  supposed, 
intestate,  and  Brown  was  appointed  administrator ;  but  subsequently 
a  will  was  found.  Brown  had  never  seen  Sharp  write,  but  acquired 
a  knowledge  of  his  handwriting  from  handling  and  examining  his 
papers  after  his  death,  and  testified,  from  a  knowledge  thus  acquired, 
that  the  will  was  wholly  in  the  handwriting  of  the  deceased.5 

By  observation  and  comparison. 

§  370.  An  English  case  was  a  little  singular.  It  was  an  action  of 
assumpsit,  and  it  became  necessary  to  prove  the  signature  of  Mary 

1  Furber  v.  Hilliard,  2  N.  H.  480;  Ham-  smith  v.  Bane,  3  Halst.  87;  Homer  v. 
mond's    case,    2    Greenl.    33;    State   v.  Wallis,  11  Mass.  312;  Farmers'  Bank  v. 
Allen,  1  Hawks,  6;  Turnipseed  v.  Haw-  Whitehill,  10  Serg.  &  R.  110;  Titford  v. 
kins,  1  McCord,  278;  Clark  v.  Wallace,  Knott,  2  Johns.  Cas.    211;   Plunket   v. 
3  Penn.  441 ;  Titford  v.  Knott,  2  Johns.  Bowman,   2   McCord,    138;    Griffith   v. 
Cas.  211;  Russell  v.  Coffin,  8  Pick.  143;  Williams,  1  Crornp.  &  Jer.  47. 

Carey  v.  Pitt,  2  Peake  Cas.  130.  4  Johnson  v.  Daverne,  19  Johns.  134; 

2  Jackson   v.   Murray,  Anthon  N.  P.  Thatcher  v.  Goff,  11  La.  94;  Titford  v. 
143;  Johnson  v.  Daverne,  19  Johns.  134;  Knott,  2  Johns.  Cas.  214;  Furber  v.  Hil- 
Gould  v.  Jones,  1  W.  Bl.  384;  Duncan  liard,  2  N.  H.  481. 

v.  Beard,  2  Nott  &  McC.  400.  5  Share  v.  Sharp,  2  Leigh,  249. 

3  Myers  v.  Toscan,  3  N.  H.  47;  Gold- 

33 


258  THE  LAW  OF  IDENTIFICATION. 

Smith,  as  attesting  witness  to  an  agreement  purporting  to  have  been 
signed  by  the  plaintiff;  for  this  purpose  the  defendant's  attorney 
was  called.  He  stated  that  he  believed  he  was  acquainted  with  Mary 
Smith's  handwriting ;  that  he  never  saw  her  write,  but  that  he  had 
observed  the  name  of  Mary  Smith,  signed  to  an  affidavit  which  bad 
been  used  by  the  plaintiff's  counsel  in  answer  to  an  affidavit  to  post- 
pone the  cause,  and  which  was  filed.  In  the  affidavit  it  was  sworn 
that  Mary  Smith  was  the  wife  of  the  plaintiff.  PARK,  J.,  said  :  "  I 
think  as  you,  the  plaintiff's  counsel,  used  the  affidavit,  the  jury  are 
bound  to  believe,  at  least,  that  your  client  did  not  think  it  was  a 
fraud.  If  it  was  a  mere  comparison  of  handwriting,  it  would  not 
do.  But  it  is  not  so  ;  the  witness  says  he  took  notice  of  the  signa- 
ture, and  in  his  mind  formed  an  opinion  which  enabled  him  to  swear 
to  his  belief.  I  have  no  doubt  that  it  is  evidence.1  But  proved 
specimens  of  the  signature  of  a  party  are  admissible  in  evidence  for 
the  purpose  of  showing  by  a  comparison  that  a  memorandum  not 
signed  by  such  party  is  in  his  handwriting.2 

Attesting  witness  —  proof—  when  and  how  made. 

§  371.  Where  there  are  several  attesting  witnesses  to  an  instru- 
ment, before  being  allowed  to  prove  their  signatures,  or  any  of  them, 
the  non-production  of  each  attesting  witness  must  be  accounted  for.3 
But  if  all  of  them  are  dead  or  absent  and  accounted  for,  the  proof 
of  the  handwriting  of  any  one  of  them  will  be  sufficient.4  But  when 
the  execution  of  the  instrument  is  duly  proved  and  goes  to  the  jury 
in  evidence,  it  is  not  conclusive ;  it  is  merely  admitted  to  go  to  the 
jury,  then  the  defense  may  be  made ;  it  may  yet  be  shown  to  be  void 
for  fraud,  want  of  consideration  or  other  causes.5  So  extremely  tech-r 
nical  were  the  courts  in  requiring  in  the  early  cases  in  North  Caro- 
lina, and  so  tenacious  to  the  English  rule,  that  it  was  held  in  an  ac- 

1  Smith  v.  Sainsbury,  5Carr.  &P.  196.  62;  Mott  v.  Doughty,  1  Johns.  Gas.  230; 

4  RichardsoD  v.  Newcomb,  21  Pick.  Jackson  v.  Cody,  9  Cow.  140;  Jackson 

815.  v.Lewis,  13  Johns.  504;  Jackson  v.  Bur- 
Jackson  v.  Root,  18  Jouns.  60;  Stump  ton,  11  id.  64;  Jones  v.  Cooprider,  1 

v.  Hughes,  SHayw.  (Tenn.)  93;  Jackson  Blackf.  49;  Dudley  v.  Sumner,  5  Mass. 

v.  Gager,  5  Cow.  383;  Booker  v.  Bowles,  444. 

2  Blackf.  90;  Jones  v.  Cooprider,  1  id.         8  Clark  v.    Sanderson,   8   Binn.    192; 

47;   Davison   v.  Bloomer,  1    Dall.    123;  Hamilton  v.  M'Guire,  2  Serg.  &  R.  478; 

Hautz   v.   Rough,    2   Serg.   &   R.    349;  Lautermilch  v.  Kneagy,3id.  202;  Farns- 

Jackson  v.  Cody,  9  Cow.  140;   Jackson  worth  v.  Briggs,  6  N.  H.  561;  Springy. 

v.  Christman,  4  Wend.  277;  Whittemore  Ins.  Co.,  8  Wheat.  268;  Bell  v.  Cowgell, 

v.  Brooks,  1  Greenl.  (Me.)  57.  1  Ashm.  (Pa.)  7;  Hamilton  v.  Mars- 

4  Jackson  v.  Chamberlain,  8  Wend,  den,  6  Binn.  45;  Jackson  v.  Waldron, 

620;  Fitzhugh  v.  Croghan,  2  J.  J.  Marsh.  13  Wend.  183. 

(Ky.)  434;  Coulson  v.  Walton,   9  Pet. 


HANDWRITING  —  SUBSCRIBING  WITNESS.  259 

tion  on  a  bond  or  promissory  note  or  bond  for  the  payment  of  money 
without  an  attesting  witness,  could  only  be  declared  on  as  a  sealed 
instrument,  and  proof  of  the  obligor's  handwriting  would  be  admitted 
as  proof  of  the  seal ;  but  proof  of  the  seal  was  not  evidence  of  de- 
livery, which  is  to  be  inferred  from  other  circumstances.1  In  an  ac- 
tion of  assumpsit  against  a  party  sought  to  be  charged  as  indorser  on 
a  promissory  note,  and  where  it  was  proved  that  the  signature  of  the 
indorser  was  not  in  the  handwriting  of  the  party,  but  that  of  the 
maker,  it  was  held  competent  for  the  plaintiff,  for  the  purpose  of 
identifying  it,  and  of  showing  authority  in  the  maker  and  acquiesc- 
ence in  the  indorser,  to  prove  that  the  defendant  remained  silent 
after  receiving  protest,  was  sued  and  suffered  judgment  by  default, 
and  never  complained  till  the  maker  absconded.2 

Attesting  witness  to  deed  —  proof. 

§  372.  In  an  action  to  recover  two  hundred  and  ten  acres  of  land 
upon  which  many  houses  had  been  built,  it  was  held  that  the  onus 
of  proving  the  genuineness  of  the  signature  of  an  attesting  witness 
to  a  deed  in  a  civil  suit  rests  on  the  party  presenting  the  deed, 
and  not  on  the  party  impeaching  it,  as  in  criminal  proceedings  ;  and 
it  was  held  to  be  a  misdirection  in  the  judge,  to  tell  the  jury  that, 
under  the  circumstances,  they  must  try  the  question  as  to  whether 
the  deed  was  forged  or  not,  in  the  same  manner  as  if  the  defendant 
was  on  his  trial  for  forgery.  This  entitled  the  plaintiff  to  a  new 
trial.  A  witness  to  a  deed  being  dead,  his  daughter,  who  was  called 
at  the  trial  to  prove  his  handwriting,  testified  that  the  signature  was 
not  her  father's  handwriting,  and  in  her  examination,  spoke  of  a  let- 
ter, which  she  had  with  her,  from  her  father  to  her  mother,  which 
letter,  at  the  request  of  the  judge,  she  produced  in  court,  and  the 
judge  handed  it  to  the  jury  to  compare  with  the  witness'  alleged 
signature  to  deed.  It  was  held  that  as  the  letter  was  not  in  any  way 
connected  with  the  cause,  it  ought  not  to  have  been  handed  to  the 
jury,  and  for  this  cause  the  judgment  of  the  court  below  was  re- 
versed.3 Of  all  the  various  means  or  methods  of  acquiring  a  knowl- 
edge of  a  person's  handwriting,  the  first  and  best  is  said  to  be  by 
seeing  the  person  write ;  and  this  has  been  the  primary  mode,  but 
it  does  seem  that  it  may  well  be  doubted ;  for  it  is  doubtless  true 
that  we  may  become  as  well,  perhaps  better  acquainted  with  a  man's 
handwriting  by  keeping  up  a  protracted  correspondence  with  him, 

1  Ingram  v.  Hall,  1  Hayw.  (N.  C.)  194.         3  Doe  v.  Wilson,  10  Moore  P.  C.  502. 
8  Weed  v.  Carpenter,  10  Wend.  404. 


260  THE  LAW  OF  IDENTIFICATION. 

than  by  seeing  nim  write  a  few  times ;  it  is,  at  best,  in  either  case,  but 
a  mental  standard  of  comparison.  But  surely  the  former  is  the  general 
rule.1 

Several  witnesses  —  necessity  of  calling  them. 

§  373.  Where  an  action  was  brought  on  a  bond,  to  which  there 
were  two  subscribing  witnesses,  one  of  the  witnesses  denied  his  signa- 
ture thereto.  It  was  held  that  the  other,  if  he  could  be  procured, 
should  be  examined,  to  identify  the  signature  of  the  obligor,  but  if 
he  could  not  be  found,  secondary  evidence  might  be  resorted  to.  In 
such  case,  the  instrument  stands  as  though  his  name  was  not  attached 
thereto.2  If  the  attesting  witness  to  a  bond  resides  in  another  and 
different  State,  beyond  the  reach  of  the  process  of  the  court,  the 
party  may  resort  to  proof  of  his  handwriting,  and  then  offer  the 
bond  in  evidence.3  The  rule  is  that  where  there  are  more  attesting 
witnesses  than  one  to  an  instrument  in  writing,  one  of  them  at  least 
must  be  called,  or  the  absence  of  all  of  them  must  be  accounted  for. 
The  attesting  witness  is  presumed  to  know  all  the  facts  attend- 
ing the  execution  of  the  instrument ;  the  parties  having  agreed  to 
rest  on  his  testimony ;  therefore,  if  possible,  he  must  be  procured.4 
Even  proof  of  the  admission  of  the  obligor,  that  he  did  execute  the 
deed,  has  been  held,  in  several  cases,  insufficient,  under  the  harsh 
rule  we  have  seen,  as  an  excuse  for  not  calling  the  attesting  witness. 

Confession  by  obligor  —  not  sufficient. 

§  374.  It  was  held  in  the  State  of  New  York,  in  an  action  brought 
on  a  bond  in  1808,  that  where  there  was  an  attesting  witness  to  the 
execution  of  a  bond,  proof  of  the  confession  by  the  obligor  that  he 
did  execute  the  bond  was  not  sufficient  to  entitle  the  obligee  to  a 
judgment ;  that  the  witness  must  be  called,  or  in  case  he  is  dead  or 
out  of  the  State,  his  handwriting  must  be  proved.  But  it  has  long 
been  held  that  where  a  deed  was  thirty  years  old,  it  may  be  admit- 
ted in  evidence  without  any  proof  of  execution  ;  and  this  rule  it 

'  George  v.  Surrey,  M.  &  M.  516;  Rex  heimer,  78  111.  22;  Hess  v.  State,  5  Ohio, 

v    Tooke    25  How.  St.  Tr.  71;  Doe  v.  7;  Rideout  v.    Newton,    17  N.  H.    71; 

Suckermore,  5  A.  &  E.  703;  Garrells  v.  Magee  v.  Osborn,  82  N.  Y.  669;  Smith 

Alexander,  4  Esp.  37;  Lewis  v.  Sapio,  v.  Walton,  8  Gill,  77;  Bowman  v.  San- 

M    &  M.  89;  Eagleton  v.  Kingston,  8  born,  25  N.  H.  87;  State  v.  Gay,  94  N. 

Ves.   478;  Hopkins  v.  Megquire,  35  Me.  C.  814;  Keith  v.  Lothrop,  10  Gush  453; 

78;  Hartungv.  People,  4  Park.  Cr.  819;  Com.  v.  Smith,  6  Serg.  &  R.  568;  Hani- 

Edelon  v.  Gough.  8  Gill,  87;  Strong  v.  mond  v.  Varian,  54  N.  Y.  898. 

Brewer,  17  Ala.  706;  Pepper  v.  Barnett,  8  Booker  v.  Bowles,  2  Blackf.  90. 

22  Gratt.  405;  United  States  v.  Prout,"4  3  Jones  v.  Cooprider,  1  Blackf.  47. 

Cranch  C.    C.    301;     Board    v.   Misen-  4  1  Stark.  Ev.  330. 


HANDWRITING  —  SUBSCRIBING  WITNESS.  261 

seems  applies  to  deeds  Conveying  lands,  bonds,  receipts  and  other  an- 
cient writings.1  What  was  held  above  as  to  the  insufficiency  of  the 
confession  by  the  obligor  has  gone  as  far  as  any  of  the  English 
courts  have  ever  gone.  And  PARK,  J.,  did  say  :  "  What  a  party 
says  is  evidence  against  himself,  whether  it  relates  to  the  contents 
of  a  written  instrument  or  any  thing  else."2 

Signature  —  admission  not  received. 

§  375.  Where  an  action  was  brought  by  an  indorsee  against  the 
drawer  and  indorser  of  a  bill  of  exchange,  and  called  a  witness  to 
prove  the  signatures  of  the  defendants,  but  the  witness  testified  that 
he  believed  that  neither  the  drawing  nor  indorsement  were  of  the 
handwriting  of  the  persons  whom  they  purported  to  be,  but  it  was 
proved  that  the  defendant  had  acknowledged  the  acceptance  to  be 
his,  and  it  was  contended,  that,  as  the  acceptance  admitted  the  draw- 
ing to  be  correct,  the  jury  might  find  for  the  plaintiff,  if  they  thought, 
upon  inspection  of  the  bill,  that  the  drawing  and  indorsement  were 
of  the  same  handwriting.  But  it  was  held  to  be  necessary  to  give 
some  proof  as  to  whose  the  handwriting  was.  Here  it  seems  that 
the  defendant's  admission  would  not  be  taken  as  against  him ;  the 
only  plausible  reason  that  could  be  given  would  seem  to  be  that  the 
court  did  not  believe  the  admission  of  the  defendant.  It  is  certainly 
a  reflection  upon  a  man's  credibility,  when  the  courts  refuse  to  take 
his  admission  against  himself ;  not  only  so,  but  it  is  an  infringement 
upon  one  of  the  first  rules  of  evidence.3 

Same  —  attesting  witness  —  satisfactory  evidence. 

§  376.  When  the  courts  once  concede  the  doctrine  laid  down  in 
the  above  rule,  they  lose  control  of  the  whole  subject,  and  it  leads 
to  dangerous  consequences,  and  in  many  cases,  perhaps,  to  a  denial 
of  justice.  We  have  seen  that  the  English  courts,  and  some  of  our  own, 
where  the  attesting  witness  cannot  be  produced,  require  proof  of  the 
handwriting  of  the  attesting  witness  in  the  first  instance  ;  a  rule  for 
which  it  seems  that  no  court  has  ever  given  a  satisfactory  reason. 
But  in  justice  to  some  of  the  courts,  growing  restive  under  the  iron 
chain  of  erroneous  precedent,  to  say,  in  justice  to  them,  that  they  re- 
quire also  some  proof  of  the  handwriting  of  the  party  executing  the 
instrument,  and  this  in  addition  to  that  of  the  handwriting  of  the  at- 

* '  Fox    v.  Reil,  3  Johns.  477;    Gover-        2  Earle  v.  Picken,  5  Carr.  &  P.  543. 
nor  v.  Cowper,  1  Esp.  275;   Roberts  v.        3  Allport  v.  Meek,  4  Carr.  &  P.  267. 
Stanton,  2  Munf.  129;  Jackson  v.  Schoon- 
inaker,  4  Johns.  161. 


2C2  THE  LAW  OF  IDENTIFICATION. 

testing  witness.1  Why  not  require  this  in  the  first  instance,  in  the 
absence  of  the  subscribing  witness.  Secondary  evidence  is  intended 
to  supply  the  want  of  primary  evidence,  i.  e.,  to  prove  the  same 
fact ;  in  these  cases  to  prove  the  execution  of  the  instrument.  If 
the  testimony  of  the  attesting  witness  (primary  evidence)  would 
prove  it,  then  in  his  absence  resort  to  secondary  evidence,  to  prove 
the  execution,  not  to  prove  the  handwriting  of  the  attesting  witness, 
but  the  obligor,  is  more  direct  and  satisfactory,  because,  when  the 
plaintiff  has  proved  the  attestation,  and  has  not  proved  the  execu- 
tion, it  falls  short. 

Fictitious  witness  —  attestation  —  evidence. 

§  377.  An  instrument  purporting  to  be  attested  by  a  subscribing 
witness  may  be  proved,  as  if  there  were  no  subscribing  witness, 
where  the  name  of  a  fictitious  person  is  inserted  as  that  of  an  attest- 
ing witness ;  or  where  the  name  of  a  real  person  has  been  written 
upon  the  instrument,  but  not  by  himself ;  or  wnere  the  person  who 
has  put  his  name  as  attesting  witness  did  so  without  the  knowledge 
or  consent  of  the  parties ;  or  where  the  attesting  witness,  on  being 
called,  denies  having  any  knowledge  of  the  execution.2*  A  rule 
somewhat  different  prevailed  in  England.  Where  the  witness  was  in- 
famous, and  thereby  unable  to  testify,  in  that  case  he  was  to  be  con- 

1  Jackson  v.  Waldron,  13  Wend.  178;  bar  v.  Marden,  18  N.  H.  311;  Thomas  v. 

Hopkins  v.   DeGraffenreid,  2  Bay.  (S.  Turnley,  2  Rob.  (La.)  206. 

C.)  187;  Jackson  v.  LeGrange,  19  Johns.  2  Lemon  v.  Dean,  2  Canipb.  636;  Fitz- 

386;    Clarke  v.   Courtney,  5  Pet.  319;  gerald  v.    Elsee,  id.    635;    Grellier  v. 

Gough  v.  Cecil,  1  Selw.  N.  P.  563,  n.;  Neale,  1  Peake,  146;  Talbot  v.  Hodson, 

Clark  v.  Sanderson,  3  Binn.  192;   Dun-  7  Taunt.  251. 

*  Where  tne  name  of  the  attesting  witness  is  shown  to  be  fictitious,  it  will  stand  as  if  there 
were  no  witness,  and  the  maker's  signature  may  be  proved,  and  the  execution  of  the  instrument 
proved  by  any  other  testimony;  treating  it  as  unattested.  Handy  v.  State,  7  Harr.  &  J.  42; 
Farnsworth  v.  Briggs,  6  N.  H.  661;  Pelletreau  v.  Jackson,  11  Wend.  123;  Gilliam  v.  Perkinson, 
4  Rand.  325;  Jackson  v.  Waldron,  13  Wend.  183;  Clark  v.  Sanderson,  3  Binn.  192;  Miller's 
Estate,  3  Rawle,  318;  Raines  v.  Philips,  1  Leigh  (Va.),  483;  Boyer  v.  Norris,  1  Harrington,  22; 
Duncan  v.  Beard,  2  Nott  &  McCord,  400;  M'Pherson  v.  Rathbone,  11  Wend.  99.  As  we  have 
seen,  It  has  been  generally  held  that  where  there  is  an  attesting  witness,  the  proof  of  his  hand- 
writing, in  his  absence,  is  considered  the  next  best  evidence;  and  as  we  have  also  seen,  this  must 
be  produced  or  his  absence  accounted  for,  before  th«  proof  of  the  handwriting  or  confession  of 
the  maker  can  be  admitted  In  evidence.  But  this  rule  so  long  established,  without  sufficient 
reason,  has  been  frequently  doubted,  and  in  Pennsylvania  and  some  other  States,  it  has  been 
said  that  the  proof  of  the  handwriting  of  the  maker  is  more  direct  and  satisfactory.  Clark  v. 
Sanderson,  3  Binn.  192;  Raines  v.  Philips,  1  Leigh  (Va.),  483:  M'Gennis  v.  Allison,  lOSerg.  &  R. 
199;  Gregory  v.  Baugh.  4  Rand.  636;  Hamilton  v.  Marsden,  6  Binn  45;  Bogle,  etc.,  Co.  v.  Sullivant, 
1  Call.  (Va.)  560.  But  In  the  latter  case  —  Bogle,  etc.,  Co.  v.  Sullivant,  1  Call.  66C  (1799) -there  was  a 
plea  of  non  eatfactum,  and  proof  of  the  hand  writing  of  the  witnesses,  and  that  they  were  dead. 
It  was  held  that  this  was  sufficient  to  admit  the  testimony  to  go  to  the  Jury,  and  that  it  was  the 
province  of  the  court  to  decide  on  the  admisstbility  of  the  testimony  —  and  of  the  jury  to  decide 
on  Its  weight.  And  see  Sigfried  v.  Levan,  6  Serg.  &  K.  808. 


HANDWRITING  —  SUBSCRIBING  WITNESS.  263 

sidered  as  dead.  One  John  Ward,  of  Hackney,  who  had  been  con- 
victed of  forgery,  was  a  subscribing  witness  to  a  bond;  on  producing 
the  record  of  his  conviction,  proof  of  his  handwriting  was  let  in.1 

Witness  to  instrument  —  identity  of  person  —  name. 

§  378.  In  a  Pennsylvania  case,  a  witness  testified  that  a  signature 
as  witness  to  a  paper  to  which  was  the  plaintiff's  name,  was  his  (the 
witness')  signature,  but  that  he  did  not  know  that  the  plaintiff  was 
the  person  who  signed  in  his  presence.  It  was  held  that  the  paper 
was  receivable  in  evidence ;  that  if  there  is  any  evidence,  however 
slight,  tending  to  prove  the  formal  execution  of  a  deed,  it  is  suffi- 
cient to  entitle  it  to  go  to  the  jury ;  that  identity  of  name  is  suffi- 
cient in  the  first  instance  as  presumptive  evidence  of  identity  of  per- 
son; that  where  a  witness  to  an  instrument  has  lost  all  memory  of 
a  transaction,  the  same  rule  applies  as  if  he  were  dead,  was  out  of 
the  State,  or  had  become  interested.  The  presumption  prima facie 
is  that  what  a  witness  had  attested  has  taken  place  in  his  presence.2 

Comparison  of  writings  —  rule  in  Massachusetts. 

§  379.  In  Massachusetts,  on  a  writ  of  dower,  the  tenant  at  the  trial 
introduced  in  evidence  a  deed  releasing  dower,  which  she  testified 
was  a  forgery.  She  thereupon  wrote  her  name  in  the  presence  of 
the  jury,  seven  or  eight  times  in  succession,  upon  slips  of  paper,  and 
offered  to  submit  it  to  the  jury  for  comparison,  to  show  that  the  sig- 
nature was  not  genuine.  The  court  permitted  it,  but  this  was  held  to 
be  error.3  But  the  courts  of  the  same  State  do  allow,  in  a  proper 
case,  and  in  a  proper  manner,  comparison  of  handwriting,  to  show 
its  identity,  or  that  it  is  not  genuine,  and  it  is  held  as  the  common, 
law  of  the  State  of  Massachusetts.4 

Assignment — indorsement  of  note. 

§  380.  In  the  same  State,  an  action  of  trover  was  brought  by 
Brighara  &  Dodge,  assignees  of  Lambert,  on  a  promissory  note  for 
$578.  The  defense  was,  that  the  note  had  been  indorsed  by  Lam- 
bert or  his  clerk  to  one  Way,  and  that  the  right  was  not  in  the  as- 
signees of  Lambert.  Thus,  the  identity  of  the  signature  of  Lambert 
became  important.  A  witness  testified,  that  as  he  was  standing  at 

1  Jones  v.  Mason,  2  Strange,  833.  Emory   v.  Goodwin,  3  Dane  Abr.  76; 

*  Hamslier  v.  Kline,  57  Pa.  St.  398.  Cabot  Bank  v.   Russell,   4  Gray,  167; 

8  King  v.  Donahue,  110  Mass.  155.  Hall  v.  Huse,  10  Mass.  39;   Moody  v. 

4  Salem  Bk.    v.    Gloucester  Bk.,  17  Rowell,  17  Pick.  490. 
Mass.  1;   Homer  v.  Wallis,  11  id.  309; 


264  THE  LAW  OF  IDENTIFICATION. 

the  door  opening  on  the  street,  he  saw  Lambert,  sitting  in  a  vehicle 
before  the  door,  write,  as  the  witness  thought,  upon  some  papers 
handed  him  by  his  clerk ;  but  that  he  was  not  near  enough  to  see 
what  Lambert  wrote  ;  that  he  afterward  went  up  with  the  clerk  into 
the  counting-room,  and  the  clerk  had  there  some  signed  and  in- 
dorsed notes  (the  witness  testified),  that  were  handed  back  by  Lam- 
bert to  his  clerk.  It  was  held  that  the  witness  was  not  competent 
to  testify  as  to  the  genuineness  of  a  signature  on  another  note,  pur- 
porting to  be  the  signature  of  Lambert.  It  was  also  held  in  this 
case  (in  1854)  that  a  teller  of  a  bank,  who,  as  such,  has  paid  many 
checks  purporting  to  be  drawn  by  a  person  who  has  a  deposit  ac- 
count with  the  bank,  was  incompetent  to  testify  to  the  handwriting 
of  such  person,  if  some  of  the  checks  so  paid  were  forged.1 

Means  of  knowledge  —  handwriting. 

§  381.  One  of  the  methods  of  acquiring  knowledge  of  handwrit- 
ing which  is  in  dispute,  is  by  written  correspondence,  receiving  let- 
ters on  matter  of  business,  found  to  have  been  written  by  the  per- 
son whose  writing  is  in  dispute,  or  if  the  letters  are  of  such  a  nature 
as  to  render  it  probable  that  they  are  written  by  the  person  profess- 
ing to  send  them,  the  witness  receiving  them  may  testify.  This  rule 
is  now  generally  adopted  in  this  country.2  The  testimony  of  a  wit- 
ness (except  subscribing  witnesses),  can  seldom  be  more  than  an 
opinion,  at  best,  and  yet  the  rule  seems  to  be  established  that  the 
witness  is  competent  to  testify  as  to  it,  if  he  has  even  once  seen  the 
party  write.3  A.nd  it  has  been  even  held  that  a  witness  may  testify 
to  the  identity  of  a  person's  mark,  from  having  seen  him  make  it 
several  times.4  But  this  would  seem  to  press  the  rule  of  evidence 
to  the  very  verge  of  the  law,  if  not  beyond  it.* 

1  Brigham  v.  Peters,  1  Gray,  139.  3  Layer's    case,  16   State  Trials,    94; 

4  Redford  v.  Peggy,  6  Rand.  316;  Fur-  Stranger  v.  Searle,  1  Esp.  14;  Lewis  v. 
ber  v.  Hilliard,  2  N.  H.  480;  Titford  v.  Sapio,  M.  &  M.  39;  Francia's  case,  15 
Knott,  2  Johns.  Cas.  211;  Carey  v.  Pitt,  State  Trials,  897;  Smith  v.  Sainsbury,  5 
2  Peake,  130;  Turnipseed  v.  Hawkins,  Carr.  &  P.  196;  Rex  v.  Hensey,  1  Burr. 
1  McCord,  278 ;  Russell  v.  Coffin,  8  644;  Garrells  v.  Alexander,  4  Esp.  37; 
Pick.  143;  State  v.  Allen,  1  Hawks,  6;  Willman  v.  Worrall,  8  Carr.  &  P.  380; 
Clark  v.  Wallace,  3  Pa.  441;  Lyon  v.  De  la  Motte's  case,  21  How.  St.  Tr.  810. 
Lyman,  9  Conn.  55;  Hammond's  case,  2  4  George  v.  Surrey,  M.  &  M.  516. 
Greenl.  33. 

•Of  handwriting,  Mr.  Burril),  at  page  Ml,  says:  "Important  links  in  a  chain  of  crimina- 
tive evidence  are  often  furnished  by  letter*  written  by  the  accused,  as  to  an  accomplice,  to 
the  person  upon  or  against  whom  a  crime  has  been  committed,  and  a  some  instances,  to  other 
persons.  Where  these  are  in  the  ordinary  hand  of  the  accused,  they  are  identified  in  the  usual 
way  of  proof  of  handwriting,  upon  which  it  will  not  be  necessary  to  dwell.  But  it  more  com- 
monly happens  that  they  are  in  hands  more  or  less  completely  disguised,  and  this  introduces  a 


HANDWRITING  —  SUBSCRIBING  WITNESS.  265 

kind  of  proof  which  Is  in  its  nature  thoroughly  circumstantial;  being  based  upon  a  minute  and 
sometimes  literally  microscopic  examination  of  particular  words  and  letters,  with  a  view  of  de- 
tecting those  involuntary  adhesions  to  the  natural  manner  of  writing,  which,  from  the  pure  force 
of  mechanical  habit,  maintain  their  existence  in  the  most  elaborate  specimens  of  imposture  and 
fraud,  and  can  seldom  be 'completely  excluded  from  them  A  vary  prominent  instance  of  this  kind 
of  proof  occurred  in  the  case  of  Com.  v.  Webster,  in  which,  out  of  three  letters  which  it  be- 
came important  to  trace  to  the  prisoner,  one  was  marked  by  the  most  extraordinary  character- 
istics. In  order,  apparently,  to  give  greater  effect  to  the  deception  intended,  the  use  of  the  or- 
dinary pen  was  avoided,  and  the  letters  were  made  with  a  marking  instrument  called  '  a  cotton 
pen ; '  some  of  the  words  being  so  rudely  shaped  as  to  be  almost  illegible,  and  the  coarse  heavy 
strokes  produced  throughout,  giving  to  the  entire  letter  a  most  singular  aspect.  The  more 
thoroughly  (as  it  would  appear)  to  guard  against  involuntary  adhesions  to  the  natural  manner, 
some  of  the  letters  were  rudely  printed ;  and  to  secure  the  deceptive  effect  of  the  whole,  the 
manner  of  an  illiterate  person,  in  regard  to  spelling,  punctuation  and  the  like,  was  studiously 
counterfeited;  the  letter  being,  moreover,  written  in  a  straggling,  uneven  manner,  upon  a  torn 
scrap  of  paper.  Yet,  under  all  this  exterior  of  ingenious  and  labored  uncouthness,  the  practiced 
eye  of  an  expert  was  enabled  to  detect  those  traces  of  the  usual  and  natural  manner  which  have 
been  alluded  to,  and  the  existence.of  which  was  afterward  confirmed  as  the  truth,  by  the  confes- 
sion of  the  prisoner  himself." 


34 


CHAPTER  X. 


HANDWRITING  —  COMPARISON. 


SEC.  SEC. 

382.  Handwriting — comparison  —  rule    407. 

in  England.  408. 

383.  Expert  testimony  —  American  rule. 

384.  Same  —  comparison  —  English    409. 

rule. 

385.  Claim  to  an  ancient  peerage  —  sig-    410. 

nature  —  evidence. 

386.  Expert  —  comparison  —  rule  in    411. 

Massachusetts. 

387.  Libel  — book  entries  —  comparison.    412. 

388.  Comparison  on  cross-examination.     413. 

389.  Comparison  —  rule  in  North  Caro-    414. 

lina. 

390.  Same  —  rule  in  Kentucky.  415. 

391.  Same  — rule  in  New  York. 

392.  Experts  —  when  called  —  for  what    416. 

purpose. 

393.  Comparison  by  jury  —  papers  taken    417. 

to  jury  room. 

394.  Comparison  —  signature  —  photo-    418. 

graph. 

395.  Information  —  libel  —  letters  —    419. 

evidence.  420. 

396.  Comparison  of  signatures.  421. 

397.  Same  —  same  —  conflicting  opin- 

ions. 422. 

398.  Same  —  ejectment  —  proof  of  a 

will.  423. 

399.  Bill  of  exchange  —  letter  —  com-    424. 

parison. 

400.  Conflict  —  signature  —  bank  pres-    425. 

ident  and  cashier. 

401.  Same  —  best  evidence  —  rule  in    426. 

New  York. 

402.  Obligor's  admission — conflict.  427. 

403.  Deed  —  name  —  widow's  dower  in 

land.  428. 

404.  Name  in  a  deed  —  in  an  indictment. 

405.  Will  —  codicil  —  forgery  —  act  of    429. 

1854. 

406.  Witness  —  absent  —  denies  attesta- 

tion. 


Best  evidence  —  rule  —  nisi  prius. 

Promissory  note  —  forgery  —  iden- 
tity. 

Testing  knowledge  of  witness  — 
identity. 

Identity  of  lease  —  signature  —  wit- 
ness. 

Ship-building  —  account  —  bill  of 
sale  —  blanks  filled. 

Bill  single  —  official  bond. 

Note  —  indorser  —  alleged  forgery. 

Execution  of  deed  —  bond  —  rule 
in  Pennsylvania. 

Expert  testimony  —  questions  of 
identity. 

Evidence  —  comparison — new  wit- 
ness. 

Witness  to  signature  —  source  of 
knowledge. 

Signature  —  alleged  forgery  of 
note. 

Same  —  bank  checks  —  discounted. 

Suit  by  freed  woman  —  two  notes. 

Proof  of  signature  —  admission  of 
obligor. 

Note  destroyed  —  receipt  —  signa- 
ture. 

Land  contract  —  receipt  —  forgery. 

Money  loaned —  usury  —  letters  — 
signature. 

Ejectment  —  marriage  —  lease  — 
signature. 

Comparison  —  English  and  Amer- 
ican rule  —  statute. 

Same  —  statutes  —  construction  — 
omission  —  comparison. 

Same  —  documents  —  thirty  years 
old. 

Where  one  or  more  letters  were 
seen  by  the  witness  —  rule  as  to. 


Handwriting  —  comparison  —  rule  in  England. 

§  382.  The  English  courts  and  some  of  our  own  have,  for  a  long 
time,  with  more  or  less  consistency,  denied  the  rule  which  would 
authorize  the  admission  of  evidence  founded  upon  a  mere  comparison 
of  handwriting  by  the  witness  ;*  yet  we  have  seen  that,  although  the 

1  Greaves  v.  Hunter,  2  Carr.  &  P.  477;  son  v.  Allcock,  1  Dowl.  &  Ryl.  165; 
Clermont  v.  Tullidge,  4  id.  1;  Hutchin-  Dickinson  v.  Prentice,  4  Esp.  82. 


HANDWRITING  —  COMPARISON.  267 

witness  was  not  permitted  to  compare  two  papers  to  make  up  his 
own  opinion,  the  jury  have  been  permitted,  under  some  circumstances, 
to  compare  the  papers,  to  aid  them  in  their  determination  and  decis- 
ion of  the  case  ;*  but  in  other  cases,  and  in  a  great  majority  of  cases, 
this  rule  has  been  denied.2  The  English  courts,  at  one  time,  seemed 
to  evince  a  disposition  to  recede  from  the  rule  rejecting  such  evidence, 
and  in  a  few  cases  held  that,  where  papers  were  in  evidence  in  the 
case  before  the  jury  for  another  purpose,  the  witnesses  and  the 
jury  might  compare  them.  But  this,  it  seems,  was  more  from  neces- 
sity than  otherwise,  because,  when  the  papers  went  to  the  jury,  there 
was  no  rule  known  to  the  practice  by  which  the  court  could  pre- 
vent the  jury  from  comparing  them,  provided  they  could  read  them, 
and  that  they  would  resort  to  a  comparison  to  determine  the  genuine- 
ness of  the  signature  in  all  cases  where  that  was  the  question  in  issue.3 
This  course  was  pursued  in  several  cases,  but  it  was  then  yielded  as 
a  matter  of  necessity.4  Mr.  Greenleaf  says:  "In  considering  the 
proof  of  private  handwritings,  we  are  naturally  led  to  consider  the 
subject  of  comparison  of  hands,  upon  which  a  great  diversity  of 
opinions  have  been  entertained." 5  In  some  of  our  own  States  the 
rule  of  permitting  the  comparison  of  hands  has  gone  to  a  consider- 
able extent ;  perhaps  fully  as  far  as  it  should  be  permitted,  and  per- 
haps as  far  as  the  English  courts  have  gone  in  the  opposite  direc- 
tion. In  an  action  of  trover  for  chattels,  plaintiff  offered  in  evidence 
a  material  paper,  purporting  to  have  been  signed  by  the  vendor  to 
the  defendant,  and  testified  that  it  was  signed  by  him  in  the  presence 
of  the  plaintiff.  The  vendor,  being  called  by  the  defendant,  testified 
that  it  was  not  signed  by  him,  and  was  not  genuine.  Being  re- 
quested by  plaintiff,  the  witness  wrote  his  name  on  a  piece  of  paper, 
and  plaintiff  offered  that  in  evidence,  to  be  compared  by  the  jury 
with  the  former,  and  this  was  held  to  be  admissible.6  Perhaps  this 
may  have  gone  too  far.  He  may  have  disguised  the  specimen  for 
the  occasion. 

Expert  testimony  —  American  rule. 

§  383.  Upon  the  subject  of  the  admission  of  evidence  in  proof  of 

1  Allesbrook  v.  Roach,  1  Esp.  351.  5 1  Greenl.  Ev.  (13th  ed.),  §  576. 

2  Da   Costa    v.   Pym,   2  Peake,    144;  6  Chandler  v.  Le  Barren,  45  Me.  534 
Macferson    v.    Thoytes,    1   Peake,    20;  (1858).     Citing    Homer   v.    Wallis,    11 
Brookbard  v.  Woodley,  id.  n.  Mass.  309;  Moody  v.  Rowell,  17  Pick. 

3  Doe  v.  Newton,  1  Nev.  &  P.  4;  Doe  490;    Hammond's  case,   2  Qreenl.    33; 
v.  Suckennore,  5  Ad.  &  El.  703.  Stranger  v.  Searle,  1  Esp.  14;  Keith  v. 

4  Griffith  v.  Williams,  1  C.  &  J.  47.  Lothrop,  10  Cash.  453. 


268  THE  LAW  OF  IDENTIFICATION. 

handwriting,  the  court  of  Maine  laid  down  a  liberal  rule  in  1822 : 
That  a  witness  may  testify  to  his  belief  of  the  genuineness  of  hand- 
writing from  his  acquaintance  with  the  handwriting  of  the  party ; 
whether  his  acquaintance  was  gained  by  having  seen  the  person  write, 
or  having  received  letters  from  him,  or  having  at  any  time  seen  writ- 
ing either  acknowledged  or  proved  to  be  his.  And  that  there  was 
no  difference  in  civil  and  criminal  cases,  in  the  application  of  the 
rule.1  The  English  rule  that  handwriting  could  not  be  proved  by 
comparison  never  was  in  force  in  Maine  or  Massachusetts.9  As  to 
whether  an  expert  may  examine  papers  and  compare  them  with  a 
view  to  acquiring  a  sufficient  knowledge  of  the  handwriting  to  be- 
come competent  to  testify  as  to  the  same,  has  not  been  doubted,  ex- 
cept in  a  few  of  our  States,  where  the  English  rule  was  early 
adopted,  when  the  decisions  there  were  in  all  sort  of  confusion.3 
The  witness  may  acquire  a  knowledge  of  the  handwriting  of  the 
party,  proposed  to  be  introduced  in  the  case,  by  satisfying  himself 
by  some  information  or  evidence  that  certain  papers  are  genuine, 
then  to  study  them  so  as  to  acquire  a  knowledge  of  the  handwriting 
of  the  party,  and  fix  an  exemplar  in  his  mind,  and  then  the  party 
may  ask  him  for  his  opinion  in  regard  to  the  writing  in  dispute ;  or 
by  offering  such  papers  to  the  jury,  with  proof  of  their  genuineness, 
and  then  asking  the  witness  to  testify  his  opinion,  whether  these  and 
the  papers  in  dispute  are  in  the  same  handwriting.  And  of  this  Mr. 
Greenleaf  says  :  "  This  method  supposes  the  writing  to  be  generally 
that  of  a  stranger ;  for  if  it  is  that  of  a  party  to  the  suit,  and  is 
denied  by  him,  the  witness  may  well  derive  his  knowledge  from 
papers  admitted  by  that  party  to  be  genuine,  if  such  papers  were 
not  selected  nor  fabricated  for  the  occasion."4  But  the  English 
rule  is  different. 

Same  —  comparison  —  English  rule. 

§  384.  On  an  issue  as  to  the  defendant's  signature  as  acceptor  of  a 
bill  of  exchange,  witnesses  were  called  for  him,  who  testified  that  they 
knew  his  handwriting,  and  did  not  believe  the  signature  to  be  his. 
Whereupon  plaintiff  proposed  to  ask  each  witness  whether  a  paper, 
placed  on  the  witness  box,  was  signed  by  the  defendant,  purposing 
by  this  inquiry  to  test  the  knowledge  of  the  witnesses  by  their 

1  2  Phillips  Ev.  613,  n.;  Rex  v.  Gator,  333;  Hubley  v.  Vanliorne,  7  id.  185; 

4  Esp.  117;  MacNally  Ev.  894-417.  Goodtitle  v.  Braham,  4  T.  R.  497;  Lyon 

*  Homer  v.  Wallis,  11  Mass.  312;  v.  Lyman,  9  Conn.  55;  Moody  v.  llowell, 

Hammond's  case,  2  Qreenl.  83.  17  Pick.  490;  Com.  v.  Carey,  2  id.  47. 

8  Lodge  v.    Phipber,   11    Serg.   &  R.  41  Ureenl.  Ev.  (13tU  ed.),  §579. 


HANDWRITING  —  COMPARISON.  269 

agreement  or  disagreement.  The  paper  was  not  in  evidence  for  any 
other  purpose,  and  this  was  not  permitted.  LITTLEDALE,  J.,  said  : 
"  I  think  there  should  be  no  rule  in  this  case.  The  second  docu- 
ment was  allowed  not  to  be  evidence  in  the  cause.  Mr.  Jarvis  says 
that  the  practice  has  been  to  permit  the  course  of  examination  which 
he  attempted  ;  but  I  never  knew  it  done  when  I  was  at  the  bar.  The 
practice  must  have  been  adopted  only  recently.  It  would  be  going 
much  farther  than  we  have  hitherto  gone,  and  I  am  not  disposed  to 
advance  one  iota  beyond  that  which  has  been  expressly  decided  on 
this  point."1 

Claim  to  an  ancient  peerage  —  signature  —  evidence. 

§  385.  On  a  claim  to  an  ancient  peerage,  a  family  pedigree,  pro- 
duced from  the  proper  custodian,  and  purporting  to  have  been 
made  by  an  ancestor  of  the  claimant  before  the  year  1751,  was  of- 
fered in  evidence,  on  proof  of  the  handwriting,  by  a  witness  who 
had  been  for  many  years  inspector  of  franks  and  of  official  cor- 
respondence, and  who  said  that,  from  a  few  inspections  he  had  of 
two  or  three  other  documents  which  were  proved  to  be  in  the  same 
ancestor's  writing,  he  had  formed  in  his  mind  such  a  standard  of  the 
character  of  his  handwriting  as  to  be  able,  without  immediate 
comparison  with  those  documents,  to  say  whether  any  other  docu- 
ments that  might  be  produced  to  him  were,  or  were  not  in  the  same 
handwriting.8  Under  the  strict  ruling  of  English  courts,  even  this 
was  rejected. 

Expert  —  comparison  —  rule  in  Massachusetts. 

§  386.  "We  have  shown  that  some  if  not  most  of  our  American 
courts  hold  a  ruling  far  more  liberal.  An  expert  may  give  the 
grounds  and  reasons  of  his  opinion  in  his  examination  in  chief,  as 
well  as  the  opinion  itself,  and  if  he  hap  done  business  with  the  party 
and  seen  him  write  only  since  the  date  of  the  disputed  note,  he  may 
give  his  opinion  that  the  signature  to  the  note  is  not  genuine .  The 
objection  to  it  goes  to  the  weight  and  not  to  the  competency  of  the 
evidence.3  The  question  whether  the  whole  of  a  promissory  note 
was  written  at  the  same  time  was  held  proper  to  put  to  an  expert.4 
And  contrary  to  the  well-recognized  English  rule,  the  court  of 

1  Griffits  v.   Ivery,  11  Ad.  &  El.  322        3  Keith  v.  Lothrop,  10  Gush.  453. 
(1840).  4  Bank  v.  Hobbs,  11  Gray,  250. 

8  Fitzwalter  Peerage    case,  10  Clark 
&  Finn.  193. 


270  THE  LAW  OF  IDENTIFICATION. 

Massachusetts  held  that,  upon  questions  as  to  the  genuineness  of  a 
signature,  the  genuine  one,  of  the  same  person,  to  a  paper  not  other- 
wise competent  evidence  in  the  case,  is  admissible  to  enable  the 
court  and  jury,  by  a  comparison  of  hands,  to  determine  the  question  ; 
and  that  the  opinion  of  a  writing-master,  professing  to  have  skill  in 
detecting  forgeries,  formed  from  the  comparison  of  hands,  without  any 
actual  knowledge  of  the  handwriting  of  the  party,  may  be  given  in 
evidence.1 

Libel  —  book  entries  —  comparison. 

§  387.  In  an  action  for  libel  in  England,  and  plea  of  not  guilty, 
when  counsel  for  plaintiff  was  stating  that  he  should  call  a  witness 
to  swear  to  his  belief  of  the  handwriting  of  the  defendant,  who  had 
been  in  his  employ,  and  whom  he  had  seen  make  entries  in  his  books, 
which  books  would  be  produced  for  the  jury  to  see,  and  form  their 
judgment  upon  them,  Lord  DENMAN,  C.  J.,  said  :  "  My  impression 
is,  that  the  books  will  not  be  evidence."  Counsel  remarked :  "  I 
apprehend  that  when  I  have  a  document  which  the  defendant  is  ac- 
tually seen  to  have  written,  and  not  depending  on  belief,  I  may  put 
it  into  the  hands  of  the  jury."  Lord  DENMAN:  "There  is  a  question 
pending,  as  to  whether  you  may  furnish  the  witness  with  such  proof, 
to  enable  him  to  judge."  Counsel  —  "  That  goes  further  than  I  pro- 
pose to  go  in  this  case  ;  it  is  a  matter  of  so  much  importance  that  I 
shall  feel  it  my  duty  to  tender  the  evidence  and  take  your  honor's 
opinion  upon  it."  But  the  evidence  was  rejected  by  the  court,  and 
yet  there  was  a  judgment  for  the  plaintiff.2 

Comparison  on  cross-examination. 

§  388.  In  an  English  case,  the  action  was  brought  by  the  indorsee, 
against  the  defendant  as  the  acceptor  of  a  bill  of  exchange,  who  in- 
sisted that  it  was  a  forgery,  and  it  became  important  to  identify  his 
signature  to  the  bill.  The  defendant  called  witnesses  to  disprove  his 
signature  to  the  acceptance,  among  whom  was  one  who  stated  that 
he  believed  it  was  not  the  signature  of  the  defendant,  and  gave  as  a 
reason  for  such  opinion  that  he  had  never  seen  a  signature  of  the 
defendant,  written  "Robert  Honner"  as  the  defendant  always 
signed  "  R.  "W.  Honner."  Counsel  for  plaintiff,  on  cross-examina- 
tion, put  into  the  hands  of  the  witness  a  paper,  not  at  all  connected 
with  the  cause,  which  bore  the  signature,  "  Robert  Honner,"  and 

1  Moody  v.  Rowell,  17  Pick.  490.  8  Waddington  v.  Cousins,  7  Carr.  &  P. 

595. 


HANDWRITING  —  COMPARISON.  271 

asked  the  witness  if  lie  believed  that  to  be  written  by  the  defendant ; 
the  witness  said  that  he  believed  it  was  so.  This  was  admitted,  to 
test  the  knowledge  of  the  witness.  ALDERSON,  B.,  conferred  with 
ABINGEK  and  PARK,  and  they  agreed  with  him,  that  it  was  compe- 
tent.1 This  was  not  considered  as  an  infringement  of  the  established 
rule  as  to  admission  of  testimony  based  upon  a  knowledge  acquired 
from  a  comparison  of  handwriting ;  in  fact  it  did  not,  and  had  no 
more  to  do  with  the  handwriting  than  would  the  spelling  of  a  word 
—  incorrect  orthography.2 

Comparison  —  rule  in  North  Carolina. 

§  389.  Some  of  onr  State  courts  adopt  the  English  rule,  while 
others,  as  we  have  seen,  have  been  quite  liberal  in  permitting  the 
comparison  of  handwriting.  The  Supreme  Court  of  North  Carolina, 
with  its  proverbial  liberality  in  practice,  for  some  unknown  reason, 
adopted  the  English  rule  as  early  as  1820,  when  one  Allen  was  under 
indictment  for  counterfeiting.  That  court  held  that  a  witness  who  had 
never  seen  a  person  write,  nor  received  letters  from  him,  could  not 
testify  to  his  handwriting;  that  he  could  not  testify  to  the  signa- 
ture of  the  president  or  cashier  of  a  bank,  from  having  received, 
handled  and  paid  out  the  bills  of  the  bank.3  And  again  in  1840, 
that  court  adhered  to  the  rule,  in  an  action  for  libel,  and  held  that 
the  doctrine  of  the  comparison  of  handwriting  was  exploded  in  this 
country,  and  in  support  of  that  position  cites  a  leading  English 
case.4 

Same  —  rule  in  Kentucky. 

§  390.  The  court  of  Kentucky  seemed  to  incline  to  the  English 
rule  on  this  subject  as  late  as  1852.  In  a  case  involving  the  due  exe- 
cution of  a  last  will  and  testament,  that  court  held,  substantially, 
that  a  witness  who  was  not  acquainted  with  the  handwriting  of  a 
party  would  not  be  permitted,  where  the  writing  appeared  to  have 
been  altered  by  erasures  and  interlineations,  to  testify  and  give  their 
opinion,  whether  the  whole  or  any  part  of  the  same  is  genuine ; 
that  in  such  case  the  opinion  of  the  witness  who  testified  to  it, 
must  be  founded  upon  a  previous  knowledge  of  the  handwriting  of 
the  party  ;  and  it  was  there  said,  that  the  opinions  and  decisions  of 
that  court  were  against  comparison  of  handwriting  even  by  the  jury, 

1  Younge  v.  Honner,  1  Car.  &  Ear.  51  8  State  v.  Allen,  1  Hawks,  6. 

(1843).  4  Pope  v.  Askew,  1  Ired.  16.     Citing 

9  Brookes  v.   Tichborne,  2  Eng.  L.  &  Doe  v.  Suckermore,  5  Ad.  &  El.  703. 
Eq.  374. 


272  THE  LAW  OF  IDENTIFICATION. 

to  determine  their  genuineness.     And  this  court  refers  to  the  same 
English  case  referred  to  by  the  court  of  North  Carolina.1 

Same  —  rule  in  Wew  York. 

§  391.  The  Supreme  Court  of  New  York,  falling  into  the  same 
error,  if  error  we  shall  call  it,  blindly  followed  the  English  prece- 
dent, which  prevails  there,  without  any  conceivable  reason  to  sup- 
port it.  An  action  was  brought,  even  in  1872,  to  recover  for  the 
value  of  standing  wood  and  timber,  under  a  written  instrument, 
called  a  bill  of  sale.  It  was  held  that  where  the  signature  of  an  at- 
testing witness  was  alleged  to  be  a  forgery,  the  defendant  cannot 
read  in  evidence  the  assignment  of  the  lease,  put  in  evidence  by  the 
plaintiff,  and  purporting  to  be  witnessed  by  the  same  person  (since 
deceased)  for  the  mere  purpose  of  getting  a  signature  for  comparison 
with  that  alleged  to  be  forged.2* 

Experts  —when  called  —  for  what  purpose. 

§  392.  The  rule  of  expert  testimony  in  the  comparison  of  hand- 
writing seems  to  have  been  laid  down  for  the  identification  of  docu- 
ments which  are  so  antiquated  that  no  living  witness  can  be  found 

1  McAllister  v.  McAllister,  7  B.  Mon.        2  Goodyear  v.  Vosburgh,  63  Barb.  154. 
(Ky.)  269.     Citing  Doe  v.  Suckermore, 
5  Ad.  &  El.  703. 

*  Mr.  Kerr,  in  his  recent  and  valuable  work  on  Homicide,  §  459,  says:  "  Where  the  identity 
of  the  prisoner  with  the  slayer  is  in  dispute,  it  is  competent  for  the  jury  to  compare  hand- 
writing by  the  prisoner  with  signatures  or  other  writing  shown  to  have  been  written  or  signed 
by  the  slayer;  or  they  may  consider  signatures  of  different  names,  where  it  is  claimed  that  all 
were  written  by  the  defendant,  in  order  to  determine  if  such  be  the  case,  and  a  writing  may  be 
part  introduced  by  one  side,  and  the  remainder  by  the  other."  Citing  Crist  v.  State,  21  Ala.  137; 
Early  v.  State,  9  Tex.  App.  476.  In  the  Alabama  case  above  cited  it  appeared  that  the  question 
before  the  jury  on  the  trial  for  murder  was  the  identity  of  the  prisoner  with  the  murderer.  The 
State  offered  in  evidence  the  registers  of  three  several  hotels,  [each  from  a  different  city,  and  each 
containing  a  different  name,  accompanied  by  parol  proof  that  the  three  names  were  written  by 
the  prisoner,  and  that  he  was  known  by  them  respectively  in  the  three  cities.  They  were  admit, 
ted  without  objection.  It  was  held  that,  hi  considering  the  question  whether  the  three  names 
were  written  by  the  same  person,  the  jury  might  compare  the  handwriting  in  the  several  regis- 
ters. And  yet,  the  court  cites  Doe  v.  Suckermore,  5  Adol.  &  El.  703;  Greaves  v.  Hunter,  2  C.  &  P. 
477;  2  Stark.  Ev.  375;  Myers  v.  Toscan,  3  N.  H.  47;  People  v.  Spooner,  1  Den.  343;  Pope  v.  Askew, 
1  Ired.  (Law)  16;  U.  8.  v.  Craig,  4  Wash.  C.  C.  729,  in  which  cases  it  was  held  not  to  be  allow- 
able to  prove  the  hand  writing  of  a  party.by  comparison  of  the  disputed  paper  with  other  writing 
admitted  or  proven  to  be  genuine.  And  see  Eagleton  v.  Kingston,  3  Ves.  475.  In  Early  v.  State , 
9  Tex.  App.  476,  the  party  was  on  trial  for<murder.  It  was  held  to  be  incumbent  on  the  State 
to  put  hi  evidence  only  so  much  of  a  written  document  as  was  shown  to  be  in  the  handwriting 
of  the  accused,  as  is  desired  by  the  prosecution;  and  it  is  then  the  privilege  of  the  accused,  if  he 
BO  desires,  to  put  in  evidence  the  whole  of  the  document.  This  is  upon  the  same  rule  of  evidence 
that  entitles  a  party  to  the  whole  of  a  conversation,  when  the  adversary  puts  in  evidence  a  por- 
tion of  it:  where  he  desires  to  call  it  out.  Or  If  evidence  of  part  of  a  transaction  is  put  in  by 
one  party,  the  other  will  generally  have  the  right  to  call  for  the  whole  of  the  transaction,  and 
especially  where  the  transaction  amounts  to,  or  purports  to  be,  a  contract  between  the  direct 
parties  to  the  action. 


HAND  WETTING  —  COMPAEISON.  273 

to  identify  them,  and  yet  not  so  old  as  to  prove  themselves,  that 
other  documents  may  be  produced,  the  genuineness  of  which  has 
been  admitted,  or  proved  to  have  been  recognized,  respected  and 
acted  upon  by  the  parties  as  genuine,  then  experts  may  be  called  to 
compare  them  and  give  their  opinions  as  to  the  genuineness  of  the 
document  in  issue.1  But  where  other  writings  are  in  the  case,  the 
comparison  may  be  made  by  the  jury  without  the  aid  of  an  expert.2 
The  rule  in  England  as  it  is  now  stated  to  be,  that  the  law  recognizes 
no  degrees  in  the  various  kinds  of  ^evidence,  rejecting  instrument 
upon  the  sole  ground  of  comparison  of  handwriting,  and  that  if  any 
document,  be  it  will  or  deed,  be  lost  or  mislaid,  in  the  hands  of  the 
adversary,  if  he  refuse  to  produce  it,  upon  notice  given,  the  party 
giving  it  may  resort  to  his  recourse  by  parol  testimony,  though  he 
may  have  them  in  his  possession,  or  an  abstract  copy  of  the  paper 
called  for.3 

Comparison  by  jury  —  papers  taken  to  jury- room. 

§  393.  It  was  held  in  an  insurance  case  that  a  party  has  no  right 
to  an  instruction  to  the  jury,  allowing  them  to  take  to  the  jury-room 
a  letter,  the  genuineness  of  which  is  denied,  for  the  purpose  of  com- 
paring it  with  a  genuine  letter.  Such  comparison,  it  was  held,  was 
only  permissible  during  the  progress  of  the  trial.  BLODGET,  J.,  said  : 
"  Now  the  authorities  clearly  go  to  show  that  if,  upon  the  progress 
of  the  trial,  the  plaintiff  had  insisted  that  the  jury  should  have  the 
privilege  of  comparing  the  Shaw  and  Foster  letters  together,  and 
determining  their  genuineness,  they  should  both  be  passed  to  the 
jury,  and  they  have  the  privilege  of  examining  them.4 

Comparison  —  signature  —  photograph  —  rule  in  Maryland. 

§  394.  In  Tichborne's  case,6  letters  were  photographed  and  documents 
resorted  to,  to  facilitate  the  comparison  of  handwriting,  to  identify 
the  writer  of  the  paper  in  question  ;  and  this  is  the  general  rule  in 

1  Doe  v.  Tarver,  Ry.  &  M.  143;  More-     206;  Quick  v.  Quick,  33  L.  J.  (Pt.  4)  146; 
wood  v.  Wood,  14  East,  328;  Gould  v.     Brown   v.    Brown,  27  id.    (Pt.    2)  173; 
Jones,  1  W.  Bl.  384;  Roe  v.  Rawlings,     Jeans  v.  Wheedon,  2  Mood.  &  R.  486. 

7  East,  282.  4  Solita  v.  Yarrow,  1  Mood.  &  R.  133; 

2  Doe  v.  Newton,   5   Ad.  &  El.    514;  Griffith  v.  Williams,  1  Cromp.  &  Jer.  47; 
Solita  v.  Yarrow,    1   Mood.  &  R.    133;  Bromage  v.  Rice,  7  Carr.  &  P.  548;  Doe 
Griffith  v.  Williams,  1  Cromp.  &  Jer.  47;  v.  Newton,    5   Ad.  &  El.   514;   Rex  v. 
Waddington  v.  Cousins,    7   Carr.  &  P.  Morgan,  1  Moody  &R.  134,  n.;  Allportv. 
595;  Rex  v.  Morgan,  1  Moody  &  Rob.  Meek,  4  Carr.  &  P.  267. 

184.  n.;  Hammond's  case,  2  Greenl.  33;        5  Brookes  v.  Tichborne,  2  Eng.  L.  & 
Bromage  v.  Rice,  7  Carr.  &  P.  548.  Eq.  374. 

3  Brown  v.  Woodman,  6  Carr.  &  P. 

35 


274  THE  LAW  OF  IDENTIFICATION. 

this  country,  and  seems  to  be  founded  in  the  best  of  reason.  In 
Massachusetts,  magnified  copies  of  photographs  were  admitted  and 
used,  not  as  copies,  but  as  fac  similes.1  In  a  Maryland  case  it  be- 
came important  to  prove  the  handwriting  of  one  Van  Winkle  to 
a  certificate  of  stock,  and  on  the  question  of  the  genuineness  of  his 
signature,  a  witness,  professing  to  be  an  expert  in  the  matter  of 
handwriting,  was  called  to  prove  that  the  signature  to  such  certifi- 
cate was  not  genuine.  He  stated  that  he  had  never  seen  Mr.  Yan 
Winkle  write,  nor  received  letters  from  him,  nor  had  he  become 
acquainted  with  it  in  the  course  of  business,  but  that  his  own  knowl- 
edge on  the  subject  was  acquired  from  an  inspection  of  his  signa- 
ture on  the  two  certificate  books  in  evidence,  which  had  been  placed 
in  his  hands  to  enable  him  to  testify,  and  that  he  had  examined 
them  carefully  for  the  period  of  five  or  six  months,  and  had  by  this 
means  acquired  a  knowledge  of  Yan  Winkle's  handwriting.  He 
was  held  to  be  incompetent  to  testify  as  to  the  genuineness  of  the 
signature  ;  his  opinion  being  derived  only  from  a  comparison  of  the 
hands.  Thus  seeming  to  adopt  the  English  rule  on  this  subject. 
On  the  same  question,  a  photographer  by  profession,  and  expert  in 
handwriting,  offered  as  a  witness  by  defendant,  stated  that  he  had, 
at  the  instance  of  the  defendant,  made  photographic  copies  of  the 
signature  of  Yan  Winkle  to  the  certificate  sued  on,  and  of  others 
admitted  to  be  genuine ;  that  some  of  these  copies  were  in  the 
actual  size  of  the  original,  and  others  of  enlarged  size.  The  defend- 
ant thereupon  proposed  to  offer  said  copies  in  evidence,  to  be  ex- 
amined by  the  jury,  together  with  the  explanations  by  the  witness 
as  to  the  difference  between  the  genuine  and  those  alleged  to  have 
been  forged,  and  his  opinion  derived  from  the  comparison  of  these 
copies,  as  to  the  genuineness  of  the  signature  to  the  certificate  sued 
upon,  to  which  the  counsel  for  the  plaintiff  objected  ;  and  this  evi- 
dence was  held  to  be  inadmissible.2  But  notwithstanding  the  rul- 
ing, the  photographs  are  now  received  in  evidence  by  the  courts,  and 
acted  upon,  both  in  this  country  and  in  England.3* 

1  Marcy  v.  Barnes,  16  Gray,  161.  Cozzens  v.  Higgins,  8  Keyes,  206;  Udder- 
»  Tome  v.  R.  Co.,  39  Ad.  87  (1873).  zook  v.  Com.,  76  Pa.  St.  340;  Eborn  v. 
'Blair    v.    Pelham,    118   Mass.   420;  Zimpelman,  47  Tex.  503;   Daly  v.  Ma- 
Church   v.    Milwaukee,   81    Wis.    512;  guire,  8  Blatchf.  187;  Ruloff  v.  People, 
Stephens,  In  re,  8  Moak's  Eng.  Rep.  482;  45  N.  Y.  213. 

*  In  Brookes  v.  Tlcbborne,  2  Enjj.  L.  &  Eq.,  PARK,  J.,  said :  "  On  showing  cause  It  was  hardly 
disputed  that  U  the  habit  of  the  plaintiff  so  to  spell  the  word  was  proved,  it  was  not  some  evi- 
dence against  the  plaintiff  to  show  that  he  wrote  the  libel ;  indeed,  we  think  that  proposition 
cannot  be  disputed,  the  value  of  such  evidence  depending  on  the  degree  of  peculiarity  in  the 
mode  of  spelling,  and  the  number  of  occasions  In  which  the  plaintiff  had  used  it.  But  it  was  ob- 


HANDWRITING  —  COMPARISON.  275 

Information  —  libel  —  letters  —  evidence. 

§  395.  An  information  was  presented  for  libel,  alleged  to  be  con- 
tained in  several  letters  written  by  defendant  to  the  prosecutor.  The 
main  question  was,  how  far  comparison  of  hands  is  evidence  ?  To 
establish  the  fact  of  the  libelous  letters,  and  to  identify  them  as" 
being  in  the  handwriting  of  the  defendant,  the  prosecuting  attorney 
produced  several  letters  avowedly  written  by  the  defendant,  in  fact, 
written  to  the  prosecutor  himself,  in  answer  to  letters  written  by 
the  prosecutor  to  him,  and  proved  these  letters  to  be  in  the  hand- 
writing of  the  defendant ;  and  then  proposed  to  call  a  clerk  of  the 
post-office,  who  held  the  place  of  inspector  of  franks,  to  prove  that 
the  hand  in  which  the  libels  were  written  was  a  feigned  one ;  and  to 
prove  that  notwithstanding  the  disguise,  the  hand  in  which  the  libel 
was  written  was  the  same  with  that  of  those  letters  admitted  to  be 
defendant's  handwriting  in  the  letters  above  stated.  The  prosecu- 
tion called  one  Conner,  a  deputy  inspector  of  franks  in  the  post- 
office,  and  asked  him  whether  in  consequence  of  his  situation,  and 
the  duty  of  his  office,  he  had  occasion  to  inspect  the  character  of  a 
great  number  of  handwritings  ?  He  answered,  yes.  Whether  it 
was  not  part  of  his  daily  duty  to  look  at  the  franks  which  came  in, 
to  ascertain  whether  they  were  the  general  handwriting  of  the  mem- 
bers whose  hands  they  purport  to  be,  or  whether  they  were  for- 
geries? He  said  it  was.  Whether  he  could  discern,  upon  inspecting 

jected  that  the  mode  of  proof  of  that  habit  was  improper,  and  that  the  habit  should  be  proved 
as  the  character  of  the  handwriting  ought,  by  producing  one  or  more  specimens  and  comparing 
them,  but  by  some  witness  who  was  acquainted  with  it,  from  having  seen  the  party  write,  or 
corresponding  with  him.  But  we  think  this  is  not  like  the  case  of  general  style  or  character  of 
handwriting ;  the  object  is  not  to  show  similarity  of  the  form  of  the  letters  and  the  mode  of 
writing  of  a  particular  word,  but  to  prove  a  peculiar  mode  of  spelling  words,  which  might  be 
evidenced  by  the  plaintiff  having  orally  spelt  in  a  different  way,  or  any  sort  of  character,  the 
more  frequently  the  greater  the  value  of  the  evidence.  For  that  purpose,  one  or  more  specimens 
written  by  him  with  that  peculiar  orthography  would  be  admissible.  We  are  of  opinion,  there- 
fore, that  this  evidence  ought  to  have  been  received,  and  not  having  been  received,  the  rule  for 
a  new  trial  must  be  made  absolute. " 

Mr.  Greenleaf  (Ev.,  13th  ed.,  vol.  1,  §  581)  says:  "  But  with  respect  to  the  admission  of  papers,  ir- 
relevant to  the  record,  for  the  sole  purpose  of  creating  a  standard  for  comparison  of  handwriting, 
the  American  decisions  are  far  from  being  uniform.  If  it  were  possible  to  extract  from  the  con- 
flicting judgments  a  rule  which  would  find  support  from  ;the  majority  of  them,  perhaps  it 
would  be  found  not  to  extend  beyond  this  ;  that  such  papers  can  be  offered  in  evidence  to  the 
jury,  only  when  no  collateral  issue  can  be  raised  concerning  them,  which  is  only  where  the 
papers  are  either  conceded  to  be  genuine,  or  are  such  as  the  other  party  is  estopped  to  deny,  or 
are  papers  belonging  to  the  witness,  who  was  himself  previously  acquainted  with  the  party's 
handwriting,  and  who  exhibited  them  in  confirmation  and  explanation  of  his  own  testimony." 
Citing  Smith  v.  Fenner,  1  Gallison  (C.  C.),  170,  175;  Goldsmith  v.  Bane,  3  Halst.  87;  Bank  of  Pa. 
v.  Haldemand,  1  Pa.  161 ;  Greaves  v.  Hunter,  2  Carr.  &  P.  477 ;  Clermont  v.  Tullidge,  4  id.  1;  Burr 
v.  Harper,  Holt  Gas.  430;  Sharp  v.  Sharp,  2  Leigh,  249 ;  Baker  v.  Haines,  6  Whart.  284 ;  Finch  v. 
Gridley,  25  Wend.  469 ;  Fogg  v.  Dennis,  8  Humph.  (Term.)  47;  Com.  v.  Eastman,  1  Gush.  189; 
Hicks  v.Pearson,  19  Ohio,  426. 


276  THE  LAW  OF  IDENTIFICATION. 

a  handwriting,  whether  it  was  the  natural  current  hand  of  the  per- 
eon  who  wrote  it,  or  whether  it  was  an  imitation  of  some  other  hand  ? 
He  said  he  thought  that  he  could  easily  discern  whether  the  hand 
was  a  disguised  one  or  not.  He  was  then  asked  whether  he  thought 
that  he  had  acquired  knowledge  by  which  from  comparing  a  hand- 
writing, acknowledged  to  be  the  party's  handwriting,  with  another, 
he  could  say  they  were  the  same  ?  He  answered  that  he  had  made 
that  a  part  of  his  study.  He  then  examined  both,  and  gave  his 
opinion,  when  objection  was  made.  His  testimony,  upon  very  full 
hearing,  was  rejected.1  * 

Comparison  of  signature  —  why  not  allowed. 

§  396.  It  seems  that  one  reason  why  the  English  judges  would 
not  trust  the  jury  to  determine  upon  handwriting  by  comparison,  was 
on  account  of  the  illiteracy  of  the  jurors.  An  action  of  assumpsit 
was  brought  on  a  bill  of  exchange  by  the  indorsee  against  the  accep- 
tor. The  bill  was  drawn  by  one  Parry  and  payable  to  his  own  or- 

1  Rex  v.  Cator,  4  Esp.  117. 

*  In  the  case  of  Rex  v.  Cator,  i  Esp.  117,  HOTHAM,  Baron,  said:  "This  case  has  been  argued 
very  fully,  and  I  have  spent  three  weeka  upon  thinkiug  of  the  question;  I  certainly  cannot  re- 
ceive more  Information  than  I  have  received ;  and  it  is  my  duty,  such  as  my  opinion  is,  to  give 
It  fairly  and  frankly;  I  perfectly  agree  with  counsel  for  the  prosecution,  that  there  is  no  differ- 
ence in  point  of  evidence,  whether  the  case  be  a  criminal  or  a  civil  case;  the  same  rules  must 
apply  to  both;  at  the  same  time  it  has  been  stated  that  one  is  more  disposed  to  resist,  and  more 
cautious  in  receiving  evidence  in  a  case  where  the  party  has  much  at  stake,  as  in  favor  of  life. 
Two  persons  have  been  called,  who,  having  looked  at  these  libels,  have  spoken  without  any 
doubt  of  their  being  the  handwriting  of  the  party  accused.  As  far  as  that  goes,  there  is  no  ob- 
jection to  it.  Then  comes  the  inspector  of  franks  from  the  post-office ;  he  has  these  libels  put 
into  his  hands.  Now,  I  do  not  know  how  that  gentleman  could  speak  to  the  handwriting,  un- 
less he  could  say  he  has  seen  the  party  write,  or  unless  he  had  been  in  the  habit  of  correspond- 
ing with  him,  excepting  that  he  is  called  to  speak  as  a  man  of  science  to  an  abstract  question; 
in  that  light  he  has  been  called,  and  his  evidence  has  been  admitted.  He  is  shown  these  papers, 
and  he  is  asked  to  look  at  them,  anl  without  inquiring  who  wrote  them  or  for  what  .purpose. 
He  is  asked,  "  from  your  knowledge  of  handwriting  in  general ,  do  you  believe  that  writing  to 
be  a  natural  or  fictitious  hand  ? "  His  science,  his  knowledge,  his  habit,  all  entitle  him  to  say, 
I  am  confident  it  is  a  feigned  hand .  To  that  there  Is  no  objection  ;  and  so  far  as  that  goes,  I  see 
no  reason  for  rejecting  the  evidence.  Then  comes  the  next  and  important  point.  It  is  said  to 
him,  "  Now,  look  at  this  paper,  and  tell  me  whether  the  same  hand  wrote  both  ?  "  Why,  one 
cannot  help  seeing,  evidently,  what  must  be  the  consequence.  I  cannot  conceive  there  is  any 
thing  in  the  idea  of  a  comparison  of  hands  if  this  is  not  to  be  considered  as  comparison  of 
hands.  The  witness  says:  I  never  saw  him  write  in  my  life.  Why,  then,  I  collect  all  my  knowl- 
edge of  his  being  the  author  of  this,  by  comparing  the  same  hand  with  that  which  other  wit- 
nesses have  proved  to  be  a  natural  hand.  By  looking  at  the  two,  he  draws  his  conclusions.  It 
sterns  to  me,  therefore,  directly  and  completely  a  comparison  of  hands.  This  question  seems 
to  have  been  solemnly  decided  ;  but  when  I  see  the  same  noble  and  learned  judge  repenting  of 
what  he  has  suffered  in  the  former  case,  and  expressly  saying  he  could  not  receive  such  evi- 
dence, and  observing  that,  though  such  evidence  was  received  in  Renett  v.  Braham,  he  had,  in 
his  summing  up  to  the  jury,  laid  no  stress  upon  it ;  this  being  the  case,  I  cannot  consider  it  so 
adjudged,  but  that  I  may  exercise  my  own  judgment  in  rejecting  it.1'  The  fact  is,  that  the 
English  courts  have  very  solemnly,  and  very  f  requnntly  decided  this  question  of  the  compari- 
•on  of  handwriting  both  ways.  And  you  can  there  find  a  decision  of  the  question  either  way 
that  you  may  desire,  as  we  shall  presently  see  In  the  text. 


HANDWRITING  —  COMPARISON.  277 

der,  aud  the  name  of  Parry  was  indorsed  on  it.  Plaintiff  proved 
the  handwriting  of  all  the  indorsers,  except  the  first,  and  the  defend- 
ant insisted  that  he  should  prove  that  also.  It  was  answered  that 
the  acceptance  was  an  admission  of  the  handwriting  of  the  drawer, 
and  that  by  comparing  that  handwriting  with  the  indorsement,  they 
would  be  found  to  correspond.  Lord  KENYON  said  :  "  Comparison 
of  hands  is  no  evidence.  If  it  were  so,  the  situation  of  the  jury, 
who  could  neither  write  nor  read,  would  be  a  strange  one,  for  it  is 
impossible  for  such  a  jury  to  compare  the  handwriting.1  To  this 
case  is  the  following  note,  '  But  in  cases  of  forgery  a  literate  jury 
may  compare  the  forged  instrument  with  other  papers  in  the  defend- 
ant's handwriting.'  But  who  is  to  determine  when  the  jury  comes 
up  to  that  standard?" 

Same  —  same  —  conflicting  opinions. 

§  397.  It  was  held  that  where  the  defense  to  a  bill  of  exchange  is 
forgery,  the  jury  shall  be  allowed  to  decide  on  the  comparison  of 
hands,  by  comparing  the  bill  in  question  with  other  acceptances  ad- 
mitted to  be  the  defendants.  Lord  KENYON  said  :  "  Some  judges 
have  doubted  the  policy  of  that  rule  of  evidence,  respecting  the  al- 
lowing of  the  jury  to  judge  by  comparison  of  hands,  because  often 
at  a  distance  from  the  metropolis  the  juries  are  composed  of  illiterate 
men,  incapable  of  drawing  proper  conclusions  from  such  evidence. 
For  my  part,  I  have  been  always  inclined  to  admit  it,  and  shall  do 
so  in  this  case.2  Here  we  have,  in  this  and  in  the  preceding  section, 
two  cases,  both  civil  actions,  each  on  a  bill  of  exchange,  presenting 
the  same  question  decided  by  the  same  judge,  and  held  both  ways ; 
it  is  true,  one  was  five  years  later  than  the  other. 

Same  —  ejectment  —  proof  of  a  will. 

§  398.  In  an  action  of  ejectment,  defendants  produced  what  pur- 
ported to  be  the  last  will  of  John  Brookbank,  and  on  which  they 
rested  their  title.  The  genuineness  of  the  signature  was  the  ques- 
tion in  dispute.  It  was  held  that  on  a  question  as  to  the  genuineness 
of  handwriting,  a  jury  may  compare  the  document  with  authentic 
writings  of  the  party  to  whom  it  is  ascribed,  if  such  writings  are  in 
evidence  for  other  purposes  of  the  cause,  but  not  else.3  But  subse- 
quently in  a  case  involving  the  same  question,  referring  to  some  of 

1  Macferson  v.  Thoytes,  1  Peake  N.  P.  2  Allesbrook  v.  Roach,  1  Esp.  351 
20  (1790).  (1795). 

8  Doe  v.  Newton,  5  Adol.  &  El.  514. 


278  THE  LAW  OF  IDENTIFICATION. 

these  cases,  we  have  just  noticed,  PATTERSON,  J.,  said :  "  I  always 
thought  the  rale  laid  down  in  Griffith  v.  Williams,  1  Cro.  &  J.  47, 
was  limited  to  documents  which  were  already  before  the  jury.  It  is 
not  said  in  the  report  of  that  case  that  necessity  was  the  ground  upon 
which  the  comparison  was  allowed ;  but  I  think  that  must  have  been 
so.  It  was  impossible,  in  suc'n  case,  to  prevent  the  jury  from  mak- 
ing a  comparison.  I  have  rejected  evidence  upon  the  ground  of  the 
distinction  now  taken  in  a  case  which  came  before  me  at  Gloucester, 
I  think  on  the  crown  side;  my  opinion  on  the  point,  therefore,  is  not 
now  formed  for  the  first  time ;  I  did  not  know  of  the  case  of  Alles- 
~brook  v.  Roach,  1  Esp.  351,  "but,  whatever  respect  I  may  feel  for 
the  authority  of  Lord  KENYON,  I  think  that  in  ruling  as  he  did  there, 
he  went  beyond  the  law,  and  introduced  a  practice  which  would  be 
dangerous  if  followed  up."1 

Bill  of  exchange  —  letter  —  comparison. 

§  399.  An  action  of  assumpsit  was  brought  in  England  by  the  in- 
dorsee against  the  drawer  and  indorser  of  a  bill  of  exchange.  The 
bill  of  exchange  was  drawn  for  the  sum  of  seven  pounds  sterling 
money,  and  which  was  admitted  to  have  been  drawn  and  indorsed 
by  the  defendant,  but  this  was  not  the  question.  The  plaintiff  put 
in  a  letter  purporting  to  have  been  written  by  the  defendant,  and 
bearing  date  but  a  few  days  before  the  bill  of  exchange  fell  due,  or- 
dering the  plaintiff,  who  was  a  tailor,  to  send  three  yards  of  cloth  to 
a  Mr.  Lindos  for  him,  the  said  defendant.  The  three  yards  of  cloth 
were  accordingly  sent  to  Mr.  Lindos  by  the  tailor,  but  it  was  denied  by 
the  defendant,  that  the  order  was  written  by  him ;  and  witnesses 
were  called  on  both  sides  to  prove  and  to  disprove  the  handwriting, 
respectively.  Plait,  for  the  plaintiff,  relied  on  the  comparison  of  the 
disputed  writing  with  the  admitted  writing  in  the  bill  of  exchange. 
Lord  TENTERDEN,  C.  J.,  in  summing  up,  made  use  of  similar  re- 
marks, and  desired  the  jury  to  take  the  papers  and  compare  them.2 

Counterfeit  —  signature  —  bank  president  and  cashier. 

§  400.  A  party  was  indicted  in  Ohio  for  selling  counterfeit  bank 
notes  in  1831.3  It  was  held  that  the  teller  of  the  bank  was  a  com- 
petent witness  to  testify  concerning  the  handwriting  of  the  president 
and  cashier  of  the  bank,  and  that  persons  skilled  in  the  knowledge 

1  Griffith  v.  Williams,  1  Cro.  &  J.  47.        »  Hess  v.  State,  5  Hammond  (Ohio),  5. 
*  Solita  v.  Yarrow.  1  Moody  &  Rob. 
183. 


HANDWRITING  —  COMPARISON.  279 

of  handwriting  are  competent  to  testify  concerning  them,  although 
they  never  saw  the  parties  write,  and  so  the  testimony  of  experts  or 
persons  skilled  seem  to  be  admitted  as  competent.  It  seems  also  that 
it  is  not  necessary  that  the  experts  should  have  seen  the  party  write. 
And  that  any  person  who  had  been  in  the  habit  of  receiving  and 
passing  bank  bills  may  be  called  to  prove  their  character,  though  his 
knowledge  may  be  acquired  by  any  of  the  known  sources  of  informa- 
tion, from  observation  or  from  seeing  it  circulated  in  the  community, 
and  he  may  never  have  even  seen  one  of  the  officers  of  the  bank.1 
And  in  an  indictment  for  forgery,  the  party  whose  name  is  alleged 
to  have  been  forged  may  testify  as  to  the  fact,  notwithstanding 
there  is  a  subscribing  witness  who  has  not  been  called.2  And  it 
has  been  held  that  the  existence  of  the  bank  may  be  proved  by  its 
mere  reputation.3 

Same  —best  evidence  —  rule  in  New  York. 

§  401.  A  party  in  New  York  was  indicted  for  having  in  his  pos- 
session, with  intent  to  pass  to  others,  one  counterfeit  bank  note  on 
the  Bank  of  Chenango,  and  a  six  dollar  note  on  the  Bank  of 
Geneva,  etc.  It  was  held  that  in  such  cases  the  best  evidence  must 
be  produced.  In  order  to  prove  the  signature  alleged  to  be  forged, 
the  testimony  of  those  who  have  seen  the  parties  write,  or  have  cor- 
responded with  them,  must  be  given ;  in  the  absence  of  such  evi- 
dence, the  testimony  of  brokers  and  others  well  acquainted  with 
bank  notes  will  be  received.4  Where  a  party  was  indicted  and 
convicted  for  uttering  forged  bank  notes,  with  intent  to  defraud, 
etc.,  it  was  held  that  it  was  not  necessary  to  prove  that  the  note  was 
forged,  by  the  president  and  cashier  of  the  bank,  whose  signatures 
are  alleged  to  have  been  counterfeited.  A  witness  who  has  been 
acquainted  with  their  handwriting  in  course  of  an  official  correspond- 
ence is  sufficient ;  and  the  case  is  strengthened,  if  the  witness  can 
state  that,  from  his  knowledge  of  the  paper,  type  and  whole  appear- 
ance of  the  note,  he  believes  it  to  be  a  counterfeit.5 

1  Com.  v.   Carey,  2  Pick.  47;  May  v.  8  Com.  v.  Smith,  6  Serg.  &  R.  568' 
State,    14  Ohio,   461 ;  People  v.  Caryl,  Citing  Anne  Lewis'  case,  Foster  C.  L. 
12  Wend.  547 ;  United  States  v.  Keen,  116;  James  Bolland's  case,  Leach,  83; 
1  McLean,  429.  Murphy's    case,   19    State    Trials,   693; 

2  Simmons  v.  State,  7  Ohio,  116.  Lord  Ferrers  v.    Shirly,  Fitzgib.    195; 

3  Sasser  v.  Ohio,  13  Ohio,  453;  Reed  v.  Gould  v.  Jones,  1  W.  Bl.  384. 
State,  15  id.  217. 

4  People  v.    Badger,  1  Wheeler  Cr. 
Cas.  543. 


280  THE  LAW  OF  IDENTIFICATION. 

Obligor's  admission  —  conflict. 

§  402.  The  English  courts  and  some  of  ours  refuse  to  take  the 
admission  of  an  obligor  to  a  written  instrument,  that  he  executed  it, 
in  lieu  of  the  proof  of  the  attesting  witness,  but  upon  this  important 
point  our  authorities  are  not  uniform.  There  seems  to  be  a  dis- 
crepancy and  a  diversity  of  opinion  as  to  whether  an  admission  of 
the  contents  of  a  written  instrument  will  supersede  the  necessity  of 
notice  to  produce  it,  and  this  relates  directly  to  the  question  of  the 
admission  of  secondary  evidence  to  establish  it,  and  to  fix  the  identity. 
When  it  is  proposed  to  prove  a  deed  of  conveyance  by  an  admission 
of  the  execution  thereof,  though  such  admission  be  an  oath,  it  was 
held  would  not  dispense  with  the  calling  of  the  attesting  witness  to 
prove  it.  But  this,  upon  principle,  it  would  seem,  should  depend 
upon  how  far  the  subscribing  witness  may  have  had  any  knowledge 
of  the  facts.  But  whatever  the  witness  may  have  known  of  the 
facts  in  the  matter,  though  not  within  the  knowledge  of  the  parties, 
would  go,  not  to  the  proof  of  the  execution  of  the  paper  which  he 
is  called  upon  to  prove  ;  but,  if  admissible  at  all,  would  go  only  to 
latent  facts;  or  to  the  ambiguity  of  the  instrument.  He  is  not 
called  upon  to  give  the  circumstances  connected  with  it,  but  to  prove 
its  execution,  which  the  parties  called  him  to  attest.1  But  in  an  action 
for  an  infringement  of  a  patent  granted  to  one  who  was  a  bankrupt, 
and  the  action  was  against  the  assignee,  counsel  for  the  defendant 
asked  plaintiffs  witness  if  he  had  not  heard  the  bankrupt  say  that 
by  deed  between  him  and  one  D.  an  interest  in  the  patent  belonged 
to  D.  It  was  held  by  the  court,  that  you  are  not  permitted  to  ask  a 
witness  what  the  opposite  party  has  said  as  to  the  contents  of  a  deed 
executed  by  him,  unless  such  party  has  been  given  notice  to  pro- 
duce the  deed.8 

Deed  —  name  —  widow's  dower  in  lands. 

§  403.  "Where  it  was  shown  that  plaintiff's  husband  conveyed  the 
land  in  question  by  his  proper  name,  and  that  a  person  of  that  name 
previously  acquired  the  title  thereto,  it  will  be  presumed,  in  the 
absence  of  proof  to  the  contrary,  that  they  were  the  same  person. 
An  action  was  brought  to  foreclose  a  mortgage ;  Sarah  K.  Sheets 
claimed  a  dower  interest  in  a  part  of  the  mortgaged  premises,  and  a 

1  Call  v.  Dunning,  4  East,  58;  John-        *  Bloxam  v.  Elsee,  1  Carr.  &  P.  558. 
son  v.   Mason,  1   Esp.   89;  Cunliffe  v.     But  see  Earle  v.  Picken,  5  id.  542. 
Sefton,  2  East,  187;  Abbot  v.  Plumbe, 
1  Dong.  216. 


HJLCTOWRITING  —  COMPARISON.  281 

decree  was  rendered  in  her  favor,  from  which  an  appeal  was  taken . 
On  this  point  the  court  said  :  "  It  is  said  that  the  evidence  fails  to 
show  that  John  W.  Sheets  was  ever  the  owner  of  any  part  of  the 
mortgaged  premises.  It  is  shown  that  a  person  of  that  name  ac- 
quired title  to  the  west  half  of  the  mortgaged  quarter  section,  and 
that  the  husband  of  the  appellee  conveyed  the  same  land  by  war- 
ranty deed  ;  in  the  absence  of  any  attempt  to  show  that  there  were 
two  persons  bearing  the  same  name,  we  think  the  showing  of  iden- 
tity is  prima  facie  sufficient."  Thus,  following  the  general  rule 
that  the  identity  of  name  is  evidence  presumptive  of  the  identity  of 
the  person  in  the  absence  of  any  countervailing  evidence.1 

Name  in  a  deed  —  in  an  indictment. 

§  404.  Where  the  only  difference  between  the  names  of  an  infant 
grantee  in  a  deed,  and  his  father,  who  executed  the  purchase-money 
mortgage,  is  the  middle  initial  letter,  the  presumption  that  the  in- 
tention of  the  parties  was  that  the  title  should  pass  to  the  father 
will  not  be  overcome  by  the  testimony  of  a  single  witness,  that  the 
grantor  consented  to  make  the  conveyance  to  the  child  and  take  the 
mortgage  from  the  father.2  As  to  the  mere  question  of  name,  there 
seems  to  be  a  difference  between  the  civil  practice  and  a  case  of 
misdemeanor;  one  Henry  was  indicted  for  selling  beer  to  John 
Brown  on  Sunday,  upon  the  affidavit  of  a  police  officer.  The  evi- 
dence showed  that  the  person  to  whom  he  sold  the  beer  was  not 
named  John  Brown ;  but  that  he  had  been  a  slave  and  belonged  to 
a  man  by  the  name  of  Brown,  by  which  name  he  had  been  known 
ever  since.  On  this,  it  was  held  that  there  was  no  variance  between 
the  indictment  and  the  proof.3 

Will  —  codicil  —  forgery  —  Act  of  1854. 

§  405.  An  issue  in  the  English  Chancery  Court  was  made  to  test 
the  validity  of  a  codicil  to  a  will.  An  attesting  witness  to  the  codi- 
cil was  called  by  plaintiff  to  prove  the  execution,  and  on  cross-ex- 
amination he  denied  .that  it  was  in  his  handwriting ;  other  docu- 
ments, which  were  admitted  by  him  to  be  in  his  handwriting,  were 
allowed  to  be  submitted  to  the  jury  for  the  purpose  of  comparison 
of  handwriting  under  the  act  of  Parliament  of  1854,  §  27,  which 

1  Oilman    v.    Sheets,    78    Iowa,   499.  2  McDuffie  v.  Clark,  30  N.  Y.  St.  Rep. 

Citing  Hatcher  v.  Rocheleau,  18  N.  Y.  444. 

87;  Gitt  v.  Watson,   18  Mo.  274;  Abb.  3  Henry  v.  State,  113  Ind.  305. 
Tr.  Ev.  56. 

36 


282  THE  LAW  OF  IDENTIFICATION. 

provides  that  "  comparison  of  disputed  handwriting  with  any  other 
writing  proved  to  the  satisfaction  of  the  judge  to  be  genuine  shall 
be  permitted  to  be  made  by  witnesses  ;  and  such  writings  and  evi- 
dence of  witnesses  respecting  the  same  may  be  submitted  as  evi- 
dence of  the  genuineness,  or  otherwise,  of  the  writing  in  dispute." 
The  jury  found  the  codicil  a  forgery.1  Another  issue  was  tried  from 
the  court  of  equity.  Plaintiff's  counsel  proposed  to  ask  defendant's 
witness  if  he  had  not  heard  the  defendant  say  that  one  S.  had  agreed 
to  give  a  certain  sum  for  the  estate  in  question.  This  was  objected 
to,  that  the  written  agreement  ought  to  be  produced.  PARK,  J., 
said  :  "  What  a  party  says  is  evidence  against  himself,  whether  it 
relates  to  the  contents  of  a  written  instrument,  or  any  thing  else."2 
The  same  learned  judge,  in  another  case,  said:  "I  have  no  doubt 
that  what  a  party  says,  admitting  a  debt,  is  evidence,  notwithstand- 
ing the  promise  to  pay  is  reduced  to  writing."3  And  yet  that  same 
court  has  long  since  established  the  rule  that  where  the  obligation 
was  in  writing  with  an  attesting  witness  thereto,  the  admissions  of 
the  obligor  will  not  be  received  in  evidence  ;  but  the  attesting  wit- 
ness must  be  produced. 

Witness  —  absent  —  denies  attestation. 

§  406.  But  a  subscribing  witness  to  a  deed  had  been  diligently  in- 
quired after,  having  gone  to  sea  and  been  absent  for  four  years  with- 
out being  heard  from,  was  held  to  be  sufficient  to  let  in  secondary 
evidence  of  his  handwriting.4  And  where  an  attesting  witness  to 
a  deed  testified  that  he  did  not  see  it  executed,  it  was  held  that  it 
may  be  proved  by  evidence  of  the  handwriting  of  the  party.  It 
will  be  treated  as  though  there  was  no  attesting  witness  to  it.5  The 
rule  to  which  we  have  been  so  often  referred,  that  the  attesting  wit- 
ness must  be  procured,  but  if  dead  or  beyond  the  sea,  his  handwrit- 
ing must  be  proved,  is  adhered  to.  If  he  is  produced  and  denies  that 
he  saw  it  executed,  you  may  prove  the  signature  of  the  maker. 

Best  evidence  —  rule  —  nisi  prius. 

§  407.  It  was  held  in  England  that  parol  evidence  could  not  be 
given  of  the  transfer  of  bank  stock,  but  copies  from  the  books  of 
the  bank  must  be  produced  ;  and  in  the  same  case  it  was  held  that 
an  instrument  executed  in  the  presence  of  a  subscribing  witness 

1  Cresswell  v.  Jackson,  2  Post.  &  F.  24.        4  Spring  v.    S.  C.  Ins.  Co.,  8  Wheat. 

9  Earle  v.  Picken,  5  Carr.  &  P.  542.         269  (1823). 

•  Singleton  v.  Barrett,  2  C.  &  J.  368.          6  Fitzgerald  v.  Elsee,  2  Campb.  635. 


HANDWRITING  —  COMPARISON.  283 

cannot  be  proved  by  any  other  person  than  such  witness,  even  after 
it  is  canceled.1  Upon  the  same  principle,  a  party  interested  in  the 
testimony  of  a  witness,  who  was  objected  to  on  account  of  having 
been  convicted  of  a  felony,  and  his  imprisonment  being  unexpired, 
is  entitled  to  insist  on  proof  of  such  conviction,  by  the  record, 
though  admitted  by  the  witness  himself.2  And  yet  it  was  held  that 
parol  evidence  of  the  fact  of  a  tenancy  was  admissible,  though  the 
tenant  held  under  a  written  agreement  with  the  landlord.3  In  an 
action  to  recover  for  injuries  to  a  reversion,  speaking  of  the  practice 
in  the  nisi  prius  courts,  BEST,  C.  J.,  used  the  following  language  : 
"  I  seldom  pass  a  day  in  a  nisi  prius  court  without  wishing  that 
there  had  been  some  written  statement  evidentiary  of  the  matters  in 
dispute.  More  actions  have  arisen,  perhaps,  from  want  of  attention 
and  observation  at  the  time  of  the  transaction,  from  the  imperfec- 
tion of  human  memory,  and  from  witnesses  being  too  ignorant,  too 
much  under  the  influence  of  prejudice,  to  give  a  true  account  of  it, 
than  from  any  other  cause.  There  is  often  a  great  difficulty  in  get- 
ting at  the  truth  by  means  of  parol  testimony.  Our  ancestors  were 
wise  in  making  it  a  rule  in  all  cases,  that  the  best  evidence  that 
could  be  had  should  be  produced ;  and  great  writers  on  the  law  of 
evidence  say,  that  if  the  best  be  kept  back,  it  raises  a  suspicion  that, 
if  produced,  it  would  falsify  the  secondary  evidence  on  which  the 
party  has  rested  his  case.  The  first  case  these  writers  refer  to  as 
being  governed  by  this  rule  is,  that  where  there  is  a  contract  in  writ- 
ing, no  parol  testimony  can  be  received  of  its  contents,  unless  the 
instrument  be  proved  to  have  been  lost."4  It  was  held  that  where 
an  agreement  in  writing  for  the  letting  of  a  tenement  at  a  certain 
rent  had  been  lost,  parol  evidence  of  its  contents  could  not  be 
admitted  for  the  sake  of  proving  thereby  the  value  of  the  tene- 
ment. Referring  to  another  case,  ABBOTT,  C.  <T.,  said  :  "  But  this 
case  is  very  different,  for  the  parties  here  seek  to  show  the  value  of 
a  tenement  by  the  proof  of  a  contract  previously  entered  into  re- 
specting it.  The  contract  was  not,  therefore,  in  this  case  collateral, 
but  of  the  very  essence  of  the  case.  Nor  can  it  be  introduced  as  a 
declaration,  for  it  is  a  declaration  made  under  such  circumstances  as 
prevent  its  being  admitted  in  evidence."5 

1  Breton  v.  Cope,  1  Peake  Cas.  30.  4  Strother  v.  Barr,  5  Bing.  137. 

2  Rex  v.  Castell  Careinion,  8  East,  77.  5  Rex  v.  luhab.  Castle    Morton.  3  B. 

3  Rex  v.  Inbab.  Holy  Trinity,  7  Barn.  &  Aid.  588. 
&  Cres.  611. 


284  THE  LAW  OF  IDENTIFICATION. 

Promissory  note  —  forgery  —  identity. 

§  408.  An  important  case  decided  in  New  York,  on  the  identity 
of  handwriting,  in  1864,  is  deemed  worthy  of  note.  One  Dubois, 
as  administrator  of  Allen,  deceased,  sued  Baker  on  two  promissory 
notes  for  $673.53,  given  by  Baker  to  Allen  in  his  life-time.  The 
signatures  to  these  notes  were  not  denied,  nor  the  amount,  but  Baker 
set  up  that  in  the  life-time  of  Allen,  they  met  and  had  an  adjustment 
of  mutual  claims  and  demands,  and  that  Allen  was  found  to  be  in- 
debted to  him  (Baker)  in  the  sum  of  $5,000,  for  which  he  executed 
the  following  note :  "  $5,000.  One  day  after  my  death,  for  services 
rendered  and  value  received  I  promise  to  pay,  and  there  shall  be  paid 
out  of  my  estate,  to  A.  C.  Baker  or  bearer,  the  sum  of  five  thousand 
dollars.  HYDE  PAKK,  Nov.  19,  1860.  ISAAC  ALLEN." 

Plaintiff  insisted  that  the  signature  to  this  note  was  a  forgery,  or 
if  genuine,  that  the  note  had  been  written  over  a  blank  signature  of 
the  intestate  by  the  defendant,  without  the  knowledge  or  consent  of 
the  alleged  maker ;  and  the  validity  of  this  note  (as  a  set-off)  was 
the  only  question  in  the  case.  It  was  shown  that  Isaac  Allen  died 
January  20,  1862,  at  Hyde  Park,  on  his  farm,  where  he  had  resided 
for  many  years.  He  left  neither  wife  nor  children,  was  eighty  years 
of  age  and  had  property  valued  at  $40,000.  The  weight  of  the  evi- 
dence went  to  show  that  the  signature  was  in  Allen's  handwriting. 
Defendant  resided  in  the  neighborhood  and  was  quite  intimate  with 
Allen  and  frequently  at  his  house ;  was  not  a  professional  man,  but 
attended  to  some  business  for  Allen  ;  sold  produce,  collected  money, 
paid  taxes,  and  attended  to  some  business  in  a  justice's  court,  etc. 
Beyond  this  there  was  little  to  show  any  consideration  for  the  note ; 
and  plaintiff  produced  his  receipts  for  small  amounts  paid  him  by 
Allen  in  full  of  all  demands  in  May  and  August,  1861.  One  Burdit 
testified  that  he  heard  Allen  speak  of  the  $5,000  note  to  Baker  in 
December,  1860.  The  character  of  the  witness,  however,  was  im- 
peached ;  Dr.  Parker,  an  expert,  testified  that  he  had  examined  the 
note  through  the  microscope ;  that  the  word  "  year "  in  the  body 
of  it  had  "been  erased,  and  the  word  "  day  "  written  upon  the  erasure ; 
and  that  the  body  of  the  note,  which  was  in  blue  ink,  had  been 
written  after  the  signature,  which  was  in  black  ink,  because  certain 
parts  of  the  Ulue  ink  passed  on  and  overlapped  the  Hack  ink.  Hull, 
cashier  of  a  bank,  testified  that  he  was  well  acquainted  with  Allen's 
handwriting,  and  that  the  signature  of  the  note  was  written  by  him. 
He  was  asked  by  the  plaintiff's  counsel,  "  Are  the  signature  and  the 


HANDWRITING  —  COMPARISON.  285 

body  of  the  note  written  with  the  same  ink  ? "  He  said,  "  I  think  it 
is  not."  He  was  asked,  "  Does  there  appear  to  have  been  any 
erasures  in  the  note  ? "  "  Was  the  erasure  made  before  or  after  the 
body  of  the  note  was  written  ? "  "  Are  either  edge  of  the  note  in  ques- 
tion cut  edges,  or  the  ordinary  fools-cap  edge  ? "  Each  of  these  were 
objected  to,  but  objections  overruled.  The  jury  found  for  the  plain- 
tiff and  rejected  the  $5,000  note  as  a  fraud,  and  the  judgment  was 
affirmed.1 

Testing  knowledge  of  witness  —  identity. 

§  409.  An  action  was  brought  on  a  promissory  note  for  $1,000, 
made  by  John  Wilson,  Jr.,  payable  to  his  own  order,  indorsed  by 
him  as  first  indorser,  Mudgett  as  second,  and  Wilson  and  Booth  as 
third  indorsers.  It  was  held  that  on  an  issue  as  to  the  genuineness, 
(when  denied  by  Mudgett  as  indorser)  the  question,  "  Would  you 
take  it  against  denial  of  the  signature,"  when  put  to  the  witness,  was 
purely  hypothetical  and  immaterial ;  that  a  witness  may  be  asked 
whether,  in  the  course  of  official  duty,  he  is  called  upon  to  pass  and 
act  upon  the  signature  of  alleged  indorser.  It  is  competent,  as  show- 
ing the  extent  and  means  by  which  he  acquired  a  knowledge,  not 
for  comparison  of  signatures.  And  the  opinion  of  the  witness  as  to 
the  genuineness  of  other  alleged  signatures  of  the  same  indorser  is 
immaterial.  But  it  was  held  incompetent  for  the  purpose  of  com- 
parison, or  to  exhibit  to  the  jury,  and,  as  a  test  of  the  knowledge  of 
the  witness,  would  involve  the  trial  of  a  collateral  issue.  This  was 
to  test  the  knowledge  of  the  witness.  "  No  precedent  can  be  found 
for  such  a  test."2 

Identity  of  lease — signature — witness. 

§  410.  An  action  to  recover  a  sum  of  borrowed  money.  The  plea 
denied  the  debt,  and  the  question  in  the  case  was,  whether  a  memo- 
randum was  in  the  handwriting  of  the  defendant;  having  in  the 
course  of  cross-examination  been  got  to  write  something  on  a  piece  of 
paper,  this  was  allowed  to  be  shown  to  the  jury  for  the  purpose  of 
comparison  of  handwriting  under  the  Common-law  Procedure  Act  of 
1854,  §  26.3  This  act  of  Parliament  made  a  radical  change  of  the 
law  upun  this  particular  point  of  evidence,  from  the  extreme  rule  we 
have  seen  prevailing  in  England  formerly.  The  extreme  ruling  of 

1  Dubois  v.  Baker,  30  N.  T.  355.  8  Cobbett  v.  Kilminster,  4  Fost.  &  E 

2  Bank  of  Com.  v.  Mudgett,  44  N.  Y.     490. 
514. 


286  THE  LAW  OF  IDENTIFICATION. 

the  courts  induced  special  legislation ;  and  perhaps  a  little  wholesome 
legislation  in  that  direction  might  not  be  amiss  on  this  side  of  the 
Atlantic.  "Where,  in  an  action  of  covenant  in  Kew  York,  the  plain- 
tiff declared  as  assignee  of  a  lease,  it  was  held  that  a  witness  who 
proves  a  deed  before  a  commissioner  must  state  that  he  was  present 
at  the  execution  thereof ;  it  seems  that  it  is  not  sufficient  that  he 
testify  that  the  parties  acknowledged  ike  execution  of  the  instrument, 
and  that  he  subscribed  his  name  as  a  witness  thereto.1  But  it  was 
there  held  that  one  who  has  seen  a  party,  whose  signature  is  in  ques- 
tion, write  his  name  once,  or  who  has  held  his  note,  acknowledged 
and  conceded  to  be  genuine,  is  a  competent  witness  as  to  the  genuine- 
ness of  such  signature.2 

Ship-building  —  account  —  bill  of  sale  —  blanks  filled. 

§  411.  In  an  action  for  money  advanced  for  the  building  of  a 
vessel,  defendant  offered  in  evidence  a  paper  purporting  to  be  the 
plaintiff's  account  with  such  vessel,  which  was  identified  as  in  the 
handwriting  of  the  plaintiff,  but  was  not  signed  by  him ;  plaintiff 
did  not  deny  that  handwriting,  but  objected  to  its  introduction  for 
want  of  such  signature  and  proof  of  delivery.  And  it  was  held  (1) 
that  the  paper  was  sufficiently  authenticated  to  make  it  evidence ; 
(2)  that  the  possession  of  the  account  by  the  defendant  raised  a 
presumption  (which  must  prevail  until  repelled)  that  it  was  rendered 
by  the  plaintiff,  and  that  it  came  properly  into  the  hands  of  the  de- 
fendant.3 And  in  the  case  of  the  sale  of  a  ship,  a  bill  of  sale  was 
given  containing  blanks  for  the  recital  of  the  register ;  afterward 
the  blanks  were  filled  up  by  the  consent  of  the  vendor  and  vendee. 
The  bill  of  sale  was  held  to  be  valid;  and  that  a  deed,  after  it  has 
been  executed,  may  be  changed  in  a  material  part,  with  the  consent 
of  the  parties,  without  rendering  it  void.4 

Bill  single  —  official  bond. 

§  41 2.  As  a  general  rule,  a  written  instrument  will  not  be  sub- 
mitted to  the  jury  for  their  consideration  in  evidence  until  it  is 
properly  authenticated  and  identified ;  but  where  the  facts  and  cir- 
cumstances in  evidence  tend  to  prove  the  authenticity  of  the  instru- 
ment, or  from  which  it  may  be  presumed,  it  may  be  read  to  the 
jury.  Then  it  becomes  a  question  of  fact,  like  other  facts,  for  the 

1  Norman  v.  Wells,  17  Wend.  186.  3  Nichols  v.  Alsop,  10  Conn.  263. 

*  Hammond  v.  Varlan,  54  N.  Y.  398.  *  Woolley  v.  Constant,  4  Johns.  54. 


HANDWRITING  —  COMPARISON.  287 

jury  to  determine.1  In  an  action  on  a  bill  single,  it  appeared  that 
at  the  time  of  its  execution  a  blank  was  left  where  the  name  of  the 
payee  was  afterward  to  be  inserted,  but  evidence  was  given  tending 
to  show  that  it  was  left  blank  in  order  that  the  payee's  name  might 
be  subsequently  filled  in.  It  was  held  that  the  due  execution  of  the 
instrument  was  for  the  jury  to  determine,  and  that  it  was  error  for 
the  court  to  reject  the  bill  when  offered  in  evidence.2  In  an  action 
upon  the  official  bond  of  a  tax  collector  in  Massachusetts,  in  1809, 
which  bond  was  alleged  to  have  been  executed  by  the  defendant  to 
the  plaintiff  as  treasurer  of  the  town  of  Pembroke  for  the  penal  sum 
of  $3,000,  as  collector  of  taxes  for  said  town,  etc.,  it  was  held  that  a 
bond  executed  by  a  surety,  being  signed  by  him  before  his  name 
was  inserted  in  the  body  of  the  bond,  his  name  being  afterward  in» 
serted  in  his  absence,  was  good  against  him.3 

Wote  —  indorser — alleged  forgery. 

§  413.  In  an  action  against  the  indorser  on  a  promissory  note,  the 
defense  was,  that  the  indorsement  was  a  forgery.  It  was  proved  that 
the  note  was  given  for  two  bills  of  goods  sold  by  plaintiff  to  the 
makers  of  the  note ;  that  when  the  bills  were  presented,  the  note  in 
question  was  in  the  hands  of  Thomas  Mclntosh,  one  of  the  makers, 
and  son  of  the  defendant,  with  the  defendant's  name  upon  it  as  in- 
dorser, but  the  amount  in  blank ;  that  it  was  filled  up  by  Thomas 
with  the  amount  of  the  two  bills,  and  delivered  to  plaintiff's 
clerk  in  payment  for  the  goods.  The  genuineness  of  the  signature 
was  proved,  and  that  other  notes  had  been  indorsed  in  the  same 
way,  to  be  used  by  Thomas  in  the  business  of  his  firm.  Then  sev- 
eral witnesses  testified  that  they  did  not  believe  the  signature  was 
genuine.  Plaintiff  cross-examining  two  of  defendant's  witnesses, 
who  had  testified  that  the  signature  was  his,  exhibited  two  other 
promissory  notes  on  which  defendant's  name  appeared  as  indorser, 
and  inquired  of  them  severally,  if  the  name  indorsed  on  those  notes 
was  defendant's  signature  ?  Defendant's  counsel  objected,  the  ob- 
jection was  overruled,  and  they  testified  generally  that  the  signa- 
tures on  these  notes  were  not  his.  Plaintiff  then  offered  to  prove 
that  defendant  had  admitted  the  genuineness  of  his  signatures  on 
these  two  notes,  and  this  was  permitted.  But  it  was  held  to  be 

1  Stahl  v.  Berger,  10  Serg.  &  R.  170;        *  Dodge  v.  Bank,  2  Marsh.  (Ky.)  613. 
Sigfried  v.  Levan,  6  id.  308;  Turnpike        3  Stahl  v.  Berger,  10  Serg.  &  R.  170. 
Co.  v.  Myers,  id.  12;  Pigott  v.  Holloway, 
1  Binn.  442. 


288  THE  LAW  OF  IDENTIFICATION. 

error.1    Thus  adhering  to  the  English  rule  on  the  subject  of  the 
comparison  of  handwriting.* 

Execution  of  deed  —  bond  —  rule  in  Pennsylvania. 

§  4:14:.  In  an  action  on  a  bond,  brought  in  Pennsylvania,  the  plea 
of  defendant  was  non  estfactum.  The  question  was  directly  pre- 
sented, what  is  sufficient  proof  of  the  identity  of  a  signature  to  the 
execution  of  a  bond,  to  entitle  it  to  go  to  the  jury  in  evidence,  for 
their  consideration  ?  It  was  held,  according  to  the  rule,  that  "  if  there 
is  an  attesting  witness,  and  the  witness  confess  himself  to  be  the  attest- 
ing witness,  prima  facie  the  presumption  is,  that  what  he  has  attested 
has  taken  place  in  his  presence ;  and  if  he  denies  that,  evidence  is  admis- 
sible from  other  circumstances,  as  where  there  is  no  attesting  witnesses. 
Proof  of  the  handwriting  is  sufficient  to  enable  the  jury  to  presume, 
in  such  case,  that  sealing  and  delivery  took  place,  although  the  hand- 
writing does  not  import  sealing  and  delivery ;  it  is  not  only  proof  of 
the  obligor's  signature,  but  it  is  presumption  that  it  is  a  deed  exe- 
cuted." It  was  further  said  that  "  the  signature,  the  sealing  and  de- 
livery are  matters  of  fact,  to  be  tried  by  the  jury.  They  are  mat- 
ters in  pais,  and  may  be  made  out  by  circumstances.  So  where  the 
attesting  witness  did  not  see  the  obligor  sign,  seal  and  deliver,  it  may 
be  inferred  by  the  jury  from  circumstances.  The  circumstances 
must  be  submitted  to  a  jury,  and  the  court  cannot  take  from  them 
the  exercise  of  their  judgment.  The  learned  judge  then  says  :  "  If 
the  subscribing  witness  denies  the  attestation,  or  is  unable  or  unwill- 
ing to  prove  the  execution  of  the  deed,  collateral  circumstantial  evi- 
dence, proof  of  handwriting  and  acknowledgment  are  admissible. 
Where  the  handwriting  of  the  obligor  is  proved,  it  is  evidence  of 
every  thing  in  favor  of  the  instrument ;  and  where  there  is  proof  of 

1  Van  Wyck  v.  Mclntosh,  14  N.  Y.  439. 

*To  thereport  of  thiscase  (Van  Wyck  v.  Mclntosh,  14  N.  Y.  439,  Banks1  ed.)  we  find  appended  the 
following  note:  "The  opinion  of  a  witness  as  to  the  genuineness  of  other  alleged  signatures, 
not  in  evidence,  is  inadmissible.  Bank  of  Com.  v.  Mudgett,  44  N.  Y.  514.  Nor  can  other 
papers,  executed  by  the  party,  the  signatures  of  which  are  admitted  to  be  genuine,  but 
which  are  not  in  evidence,  be  submitted  to  the  jury,  to  enable  them  to  compare  the  signatures. 
Randolph  v.  Loughliu,  48  N.  Y.  45«;  Hynesv.  McDermott,  88  id.  41;  s.  c.,  7  Abb.  N.  C.  98; 
Goodyear  v.  Vosburgh,  83  Barb.  154;  Glover  v.  Mayor,  7  Hun,  232;  Hoyt  v.  Stuart,  3  Bosw. 
4J7;  Ellis  v.  People,  21  How.  Pr.  356;  Gilbert  v.  Simpson,  0  Daly,  29.  But  where  different  in- 
struments are  In  evidence  in  the  cause,  the  jury  may  make  a  comparison  of  the  several  signa- 
tures, where  the  question  Is,  whether  one  of  them  is  genuine.  Dubois  v.  Baker,  30  N.  Y.  355. 
And  even  In  a  criminal  case,  on  a  question  of  forgery,  the  jury  may  compare  the  alleged  forged 
instrument  with  another  document  in  evidence,  in  the  handwriting  of  the  prisoner.  Pontius  v. 
People,  82  N.  Y.  339;  s.  c.,  21  Hun,  828;  Hunt  v.  Lawless,  7  Abb.  N.  C.  118.  This  question  has 
been  passed  upon  by  the  legislature,  In  a  recent  statute  (Act  of  1880,  chap.  86)  which  does  not 
appear  to  have  as  yet  received  a  judicial  construction." 


HANDWRITING  —  COMPARISON.  289 

the  handwriting  of  the  attesting  witness,  this  is  evidence  of  all  that 
he  professed  to  attest  by  his  signature  —  the  seal  ing  and  delivery  of 
the  bond.  The  mistake  arises  from  supposing  that  the  court,  in  suf- 
fering the  deed  to  go  in  evidence  to  the  jury,  decided  the  issue ; 
nothing  can  be  more  unfounded.  *  *  *  If  the  subscribing  wit- 
ness proves  the  execution  of  the  bond,  it  is  admitted  it  then  goes 
in  evidence  to  the  jury,  but  it  does  not  pass  to  them  as  resjudicata, 
for  the  defendant  may  show  it  to  be  a  forgery  supported  by  forgery. 
If  the  bond  is  proved  by  the  subscribing  witness,  it  is  read  in  evi- 
dence. Why  ?  Not  because  the  court  pronounce,  by  admitting  it 
in  evidence,  that  it  is  the  deed  of  the  party,  but  because  the  party 
has  given  evidence  of  its  execution."1  The  above  decision  was 
rendered  by  DUNCAN,  J.,  in  1820,  but  a  similar  doctrine  had  been 
announced  by  the  same  court  as  early  as  1803,  in  which  it  was  then 
held,  in  an  action  on  a  bond,  that  when  a  suit  was  on  the  bond  and 
on  plea  of  non  estfacium,  its  execution  must  generally  be  proved 
by  the  subscribing  witnesses ;  but  if  they  cannot  be  found  or  are  un- 
able to  prove  the  execution,  collateral  testimony  is  admissible.2 

Expert  testimony  —  questions  of  identity. 

§  415.  It  has  been  held  that  where  the  business  or  avocation  of  a 
witness  has  not  been  such  as  to  require  him  to  distinguish  between 
true  handwriting  and  that  which  is  simulated,  it  is  not  a  reason  to  ex- 
clude him  from  giving  an  opinion,  though  it  be  founded  merely  upon 
a  comparison.3  Where  the  question  is  one  of  identity,  as  in  case  of 
a  disputed  signature,  or  other  contested  questions  of  identity,  any 
witness  may  give  an  opinion  based  upon  his  knowledge  of  the  facts. 
It  is  an  exception  to  the  rule  which  permits  none  but  expert  witnesses 
to  give  opinions.  And  expert  testimony  is  received  by  all  the  courts, 
though  some  regard  it  as  weak,  feeble  and  decrepid.  In  a  recent 
case,  the  following  instruction  to  the  jury  was  held  to  be  correct, 
to-wit :  "  Opinion  of  experts  was  evidence  to  be  considered  by  the 
jury  in  connection  with  other  evidence  bearing  on  the  subject,  but 
was  not  of  itself  conclusive ;  that  the  value  of  the  rule  of  law,  permit- 
ting them  to  testify  their  opinions,  was  grounded  on  the  fact  that 
generally  such  opinions  are  correct.  The  value  of  such  opinion  was 
to  be  determined  by  the  jury,  having  reference  to  the  skill  and  com- 
petency which  the  witness  manifested,  in  connection  with  the  other 

1  Sigfried  v.  Levan,  6  Serg.  &  R.  308.          3  Sweetser  v.  Lowell,  33  Me.  446. 

2  Taylor  v.  Meekly,  4  Yeates  (Pa.),  79. 

37 


290  THE  LAW  OF  IDENTIFICATION. 

evidence  winch  was  produced  before  them,  to  be  considered  in  de- 
termining whether  the  disputed  letters  were  in  the  plaintiff's  hand- 
writing ;  that  experts  were  not  infallible;  generally  their  opinion  was 
reliable, but  that  sometimes  they  were  wrong;  that  the  court  had  in 
inauy  instances  known  them  to  hit  right  and  in  some  instances  wrong.1 

Evidence  —  comparison  —  new  witness. 

§  416.  In  an  action  of  ejectment  in  New  York,  decided  in  1826, 
it  was  held  by  that  court,  in  a  question  of  identity  of  handwriting, 
that  proof  by  comparison  of  handwriting,  i.  e.«  the  juxtaposition  of 
two  writings,  in  order  to  ascertain  whether  both  were  written  by  the 
same  person,  was  inadmissible;  that  the  witnesses  cannot  testify  from 
such  comparison  alone,  nor  can  the  writing  be  submitted  to  the  jury. 
And  it  was  also  held  that  where  there  was  only  one  attesting  wit- 
ness, and  he  did  not  prove  the  deed,  but  the  party  to  the  deed  ac- 
knowledged the  execution  before  another  witness  at  a  subsequent 
period,  who  subscribed  his  name  as  a  witness,  this  last  witness  might 
prove  the  deed.  It  was  equivalent  to  an  original  execution  in  the 
presence  of  this  new  witness.2 

Witness  to  signature  —  source  of  knowledge. 

§  417.  The  writing  from  which  a  witness  forms  his  judgment,  ac- 
quires his  knowledge  and  makes  up  his  opinion  as  to  the  genuineness 
of  a  handwriting  may  be  severed  from  any  and  all  proof  or  fact  that 
he  ever  saw  the  party  write.  Such  evidence  will  be  admitted  where 
there  is  an  acknowledgment  by  the  party  writing,  that  the  writing 
from  which  the  witness  has  formed  his  opinion  is  genuine,  as  where 
a  continued  and  protracted  espistolary  correspondence  has  been  con- 
ducted and  carried  on  with  the  party  whose  handwriting  is  in  dis- 
pute, in  such  a  manner,  under  such  circumstances  and  to  such  an 
extent  as  to  lead  to  the  assurance  which  raises  the  presumption  of 
the  genuineness  of  the  letters  and  signatures.3  As  it  is  of  course 

1  Pratt  v.  Rawson,  40  Vt.  183.      And  Belotti,   10  Mo.  597;  Baker  v.  Squier,  1 

see  Bank  v.  Haldeman,  1  Pa.  161;  Lodge  Hun,  448;  State  v.  Shinborn,  46   N.  H. 

v.  Phipher,  11  Serg.  &  R.  833;  Lyon  v.  497;  Doe  v.  Suckermore,    5   Ad.  &  El. 

Lyman,  9  Conn.  55;  State  v.  Cheek,  13  731;  United   States  v.  Simpson,   3  Pa. 

Ired.  (N.  C.)  114;   Sackett  v.  Spencer,  487;    Gordon    v.     Price,    10   Ired.    (N. 

29  Barb.  180.  C.)  385 ;  Jackson  v.  Van  Dusen,  5 

8  Jackson  v.  Pbillips,  9  Cow.  94.  Jobns.  144;  Empire  Co.  v.  Stuart,  46 

3  Page  v.  Romans,  14  Me.  478;  Lyon  Micb.  482;  Soutb.  Ex.  Co.  v.  Tbornton, 

v.  Lyman,  9  Conn.  55;  Bruce  v.  Crews,  41    Miss.   216;     Cbaffee     v.    Taylor,    3 

89  Ga.   544;  Cody  v.  Conly,   27  Gratt.  Allen,   598;     Jobnson    v.   Daverne,    19 

813;  Greaves   v.  Hunter,   2   Carr.  &  P.  Jobns.  134;  State  v.  Spence,  2   Hairing. 

477;  Burnbam   v.  Ayer,  86  N.  H.  182;  848;  Com.v.  Smith,  6  Serg.  &R.  568. 

Com.  v.  Carey,  2  Pick.  47;  Reyburn  v. 


HANDWRITING  —  COMPARISON.  291 

always  understood,  that  in  all  cases  where  the  witness  bases  his 
standard  of  comparison  upon  other  writings,  and  draws  an  opinion 
from  them,  they  must  be  identified  as  the  handwriting  of  the  party 
whose  writing  is  in  dispute.1  * 

Signature  —  alleged  forgery  of  note. 

§  418.  On  the  trial  of  an  action  in  New  York  on  a  promissory 
note,  the  issue  was  upon  the  genuineness  of  the  note.  Upon  the 
trial  the  plaintiff  introduced  one  Eldridge  as  a  witness,  who  testified 
to  his  knowledge  of  defendant's  handwriting,  and  that  he  believed 
the  signature  to  the  note  was  his ;  that  he  was  teller  in  a  bank,  and 
had  been  accustomed  to  examine  writings  to  ascertain  whether  or  not 
they  were  genuine.  After  defendant  had  given  evidence  tending  to 
show  that  the  note  was  not  in  his  handwriting,  and  that  the  plaintiff 
had  been  seen  imitating  his  hand,  he  recalled  Eldridge  and  proved 
by  him  that  within  a  certain  period  of  time  the  bank  in  which  he, 
Eldridge,  was  teller  had  loaned  no  money  to  plaintiff;  and  further 
examining  him,  asked,  "  What  kind  of  a  hand  does  the  plaintiff 
generally  write  ? "  This  was  objected  to,  objection  overruled  and 
witness  said :  "  He  generally  wrote  a  careless  and  poor  hand." 
"  From  your  knowledge  of  his  handwriting  should  you  think  he 
could  have  written  the  note  in  question  ?  "  Witness,  "  I  should  not 
think  that  he  could  have  written  it."  Of  this  the  court  remarked : 
4 '  The  question  secondly  put  and  answered  called  for  an  opinion  of 
the  witness  upon  a  matter  not  directly  in  issue,  but  bearing  directly 
upon  the  main  issue,  and  upon  which  the  opinion  of  the  witness  was 
not  admissible  in  evidence.2 

Same  —  bank  checks  —  discounted. 

§  419.  It  was  held  that  in  an  action  by  a  bank  to  recover  of  the 

1  McKeone  v.  Barnes,  108  Mass.  344;     Boyle   v.  Colman,    13    Barb.  42;    Cun- 
Cochran  v.   Butterfield,  18  N.  H.  115;     ningham  v.  Bank,  21  Wend.  556. 
2  Boyle  v.  Colman,  13  Barb.  42. 

*Mr.  Best  lays  down  a  rule  thus :  "  1.  A  standard  of  the  general  nature  of  the  handwriting  of 
the  person  may  be  formed;in  the  mind  by  having  on  former  occasions  observed  the  character 
traced  by  line  while  in  the  act  of  writing,  with  which  standard  the  handwriting  in  the  disputed 
document  may,  by  mental  operation,  be  compared.  2.  A  person  who  has  never  seen  the  sup- 
posed writer  of  the  document  write,  may  obtain  a  like  standard  by  means,  either  of  having  car- 
ried on  written  correspondence  with  him,  or  having  had  other  opportunities  of  observing  writ- 
ing which  there  was  reasonable  ground  for  presuming  to  be  his.  3.  A  judgment  as  to  the  gen- 
uineness  of  the  handwriting  to  a  document  may  be  formed  by  a  comparison,  instituted  between 
it  and  other  documents  known  or  admitted  to  be  in  the  handwriting  of  the  party."  Best  Ev. 
(5th  ed.),  §  233.  It  is  certainly  very  doubtful  whether  having  seen  a  person  write  a  few  times, 
is  to  form  a  better  standard  than  a  familiarity  with  the  hand  from  correspondence  or  business 
relations.  It  is  still  doubtful  whether  either  of  these  sources  is  better  than  a  direct  comparison. 


292  THE  LAW  OF  IDENTIFICATION. 

defendant  $146,  amount  of  a  check,  the  mere  fact  that  checks  upon 
one  bank  had  been  passed  to  the  credit  of  another,  which  had  dis- 
counted them  and  transmitted  them  to  a  correspondent  for  collectionr 
is  not  sufficient  to  support  the  testimony  of  a  witness  who  testified 
to  the  signature  of  the  drawer  of  the  check,  when  he  has  no  knowl- 
edge of  it  except  that  derived  from  its  similarity  to  the  signatures  on 
the  checks  paid.  But  we  have  seen  in  New  York  that  identity  could 
not  be  proved  by  a  comparison  of  handwriting.1  This  rule  seems  to 
be  carried  fully  as  far  as  any  of  the  English  decisions  have,  and  in 
fact  much  farther  than  some  of  them.  The  English  court  in  1825, 
in  an  action  of  assumpsit  for  the  charge  for  expense  in  keeping  some 
horses,  the  defendant's  attorney  was  called  as  a  witness  to  prove  his 
signature  to  a  certain  paper,  when  he  testified  that  he  had  never  seen 
the  defendant  write,  but  that  he  did  believe  that  the  signature  to 
that  instrument  was  in  the  defendant's  handwriting,  from  having  re- 
ceived letters  from  him,  upon  which  he  had  acted.  BEST,  Ch.  J., 
held  that  this  was  quite  sufficient  for  the  witness  to  ground  a  belief 
upon,  which  was  all  that  was  required.2 

Suit  by  freed  woman  —  two  notes. 

§  420.  An  action  was  brought  in  South  Carolina  against  the  ex- 
ecutor of  an  estate,  on  two  promissory  notes.  The  defense  set  up 
was,  that  the  notes  and  each  of  them  were,  either  nudumpactum  or 
ex  turpi  contracts.  In  support  of  this  defense,  the  executor  offered 
the  following  evidence ;  proving  that  the  plaintiff,  the  woman  Tabi- 
tha,  was  a  dependent  on  Bremar,  even  for  the  means  of  subsistence; 
that  she  had  been  first  his  slave,  and  afterward  his  freed  woman, 
and  notoriously  carried  on  an  adulterous  intercourse  with  him,  from 
the  time  of  his  marriage  to  the  time  of  his  death,  etc.,  and  certain 
letters  were  offered.  NOTT,  J.,  said :  "  The  usual  method  of  proving 
an  instrument  of  writing,  where  there  is  no  subscribing  witness,  is 
to  prove  the  handwriting.  But  that  could  not  be  expected  in  this 
case,  as  the  party  cannot  write ;  even  if  her  name  had  been  subscribed 
to  the  letters,  the  difficulty  would  have  been  lessened.  Some  other 
method  must,  therefore,  be  resorted  to,  and  why  may  not  the  letters 
be  looked  into.  If  they  furnish  internal  evidence  of  the  source 
from  whence  they  were  derived,  I  can  see  no  reason  why  we  may 
not  avail  ourselves  of  that  evidence.  Thus :  for  instance,  if  they 

1  Cunningham  v.  Hudson  Riv.  Bank,  a  Tharpe  v.  Gisburne,  2  Carr.  &  P.  2U 
21  Wend.  556. 


HANDWRITING  —  COMPARISON.  293 

relate  to  facts  which  cannot  be  known  to  any  other  person,  it  will 
be  presumed  that  they  were  written  by  her  authority.  If  they  em- 
brace a  number  of  facts  which  relate  to  her  and  her  situation,  and 
which  cannot  apply  to  any  other  person,  each  of  those  facts  consti- 
tute a  link  in  the  chain  of  circumstances,  which  go  to  strengthen  the 
presumption.  In  ordinary  cases,  such  evidence  will  not  be  allowed, 
because  the  writing  is  always  presumed  to  be  by  the  person  by  whom 
it  purports  to  be  written,  and  proof  of  the  handwriting,  therefore,  is 
higher  evidence.  But,  in  the  present  case,  the  evidence  offered  was 
the  best  which  the  nature  of  the  case  could  afford.  "Whether  it 
would  have  been  sufficient  to  establish  the  fact  is  another  question ; 
bnt  I  think  it  ought  to  have  been  submitted  to  the  jury."  The  pre- 
siding judge  had  charged  the  jury  :  "  That  these  notes,  even  if  vol- 
untary, were  not  nudum  pactum,  and  that  if  a  man  makes  a  volun- 
tary note,  he  is  legally  bound  by  it.  But  that  it  was  unnecessary  to 
consider  this  point  inasmuch  as  an  ample  consideration  had  been 
proved."1  This  was  clearly  error.  The  court  should  not  tell  the 
jury  what  has  been  amply  proved.  It  is  invading  the  province  of 
the  jury,  whose  duty  it  is  to  judge  of  what  has  been  proved,  other- 
wise the  jury  would  be  an  awkward  appendage  to  the  court. 

Proof  of  signature  —  admissions  of  obligor. 

§  421.  "We  have  seen  the  rule  to  be,  where  there  is  an  attesting 
witness  to  a  written  instrument,  no  proof  of  the  instrument  or  its 
execution  can  be  made  except  by  such  witness,  unless  his  absence  is 
first  duly  accounted  for ;  thus  far,  the  rule  seems  sound  enough ;  but 
then  it  does  not  permit  proof  of  the  execution  until  you  have  proved 
the  handwriting  of  the  witness ;  if  you  do  this,  though  this  does  not 
prove  the  execution,  it  satisfies  the  rule.  But  if,  after  due  diligence, 
you  cannot  procure  the  attesting  witness,  nor  any  witness  to  prove 
his  handwriting,  the  court  will  then,  under  this  rule,  permit  you  to 
do  directly  what  you  have  failed  to  do  by  indirection  and  circum- 
locution— prove  the  handwriting  of  the  obligor.  And  the  admissions 
of  the  obligor,  it  is  held,  though  against  himself,  of  the  execution  of 
bond,  will  not  be  taken  as  true,  so  as  to  waive  the  necessity  of  the 
circuitous  course  above  indicated.  But  some  of  the  courts  have  so 
far  receded  from  this  English  rule  as  to  hold  that  the  declarations  of 
1  Singleton  v.  Bremar,  Harp.  (S.  C.)  201. 


294  THE  LAW  OF  IDENTIFICATION. 

the  maker  may  be  resorted  to,  to  prove  the  execution  of  the  instru- 
ment, whenever  it  becomes  proper  to  admit  proof  of  the  makers 
handwriting.1 

Note  destroyed  —  receipt —  signature. 

§  422.  Where  an  action  was  brought  on  a  promissory  note  which 
had  been  improperly  canceled  and  destroyed,  a  receipt  in  full  was 
offered  in  evidence,  with  the  name  of  Peter  Welsh  as  subscribing 
witness.  Welsh  being  asked  whether  the  name  thus  subscribed  was 
his  handwriting,  testified  that  he  did  not  believe  it  was.  On  the 
part  of  Patterson,  a  witness  testified  that  Welsh  taught  school  in  the 
neighborhood ;  he  had  frequently  seen  him  write  and  seen  his  hand- 
writing, and  he  believed  it  was  his  handwriting,  but  would  not 
swear  to  it  positively.  He  also  testified,  that  on  the  day  and  before 
the  release  was  executed,  in  a  conversation,  Tucker  told  him,  on 
being  asked  if  Patterson  owed  him  any  thing,  that  Patterson  owed 
him  nothing,  and  again  in  the  presence  of  Patterson,  Tucker  said  he 
owed  him  nothing.  That  they  had  a  settlement,  and  Patterson 
paid  him  $20  on  that  settlement.  It  was  held  that  where  a 
subscribing  witness  to  an  instrument  denies  his  handwriting,  or  at- 
testation, other  evidence  of  the  execution  of  the  instrument  may  be 
received  ;  and  proof  of  the  handwriting  of  the  subscribing  witness, 
by  other  persons  acquainted  therewith,  will  in  such  cases  be  sufficient 
to  authorize  the  reading  of  the  instrument  to  the  jury.2 

Land  contract  —  receipt  —  forgery. 

§  423.  In  an  action  of  ejectment  in  Pennsylvania  in  1824,  there 
was  involved  the  proof  of  a  parol  agreement,  in  proof  of  which  a 
receipt  was  produced  in  part  payment  for  the  land.  The  defendant 
asserted  that  the  receipt  was  a  forgery,  and  gave  evidence  of  the 
declarations  of  Lodge,  one  of  the  plaintiffs,  as  to  the  place  where  he 
found  it.  Upon  this,  Lodge  offered  a  witness  to  prove  the  place  in 
which  he  found  the  receipt  in  contradiction  to  the  evidence  of  his 
declarations.  The  court  rejected  the  testimony,  and  the  plaintiff 
excepted.  It  was  held  that  a  witness,  though  a  man  of  business,  and 
much  conversant  with  writings,  who  had  never  been  employed  .in 
detecting  forgeries,  cannot  properly  be  asked  whether  papers  proved 

1  Conrad   v.    Farrow,    5  Watts,  536;     Irwing,  2  Hayw.  (N.  C.)  27;  Holloway  v. 
Miller's  Estate,  3  Rawle,  818;  Taylor  v.     Laurence,  1  Hawks,  49. 
Meekly,  4  Yeates  (Pa.),  79;   Irving  v;        *  Patterson  v.  Tucker,  4  Halst.  (N.  J.) 

322. 


HANDWRITING  —  COMPARISON.  295 

to  be  in  the  handwriting  of  a  particular  person,  and  a  paper  alleged 
to  have  been  forged,  were,  in  his  opinion,  the  same  handwriting. 
But  a  jury  may  compare  writings,  and  it  seems  that  men  of  business, 
who  are  much  in  the  habit  of  seeing  many  hands,  would  be  better 
qualified  to  judge  of  their  genuineness  than  jurors  generally  are; 
though  the  rule  is,  perhaps,  otherwise,  where  the  witness  declares 
that  he  is  not  an  expert  in  the  detection  of  writing,  as  to  whether 
they  are  or  are  not  forgeries.1  But  upon  this  point  our  decisions  are 
not  at  all  in  harmony.  Where  an  information  was  filed  against  a 
defendant  for  a  riot,  a  letter  from  the  prosecutor  was  offered  in  evi- 
dence by  the  defendant,  which  letter  was  admitted  to  be  in  his  hand- 
writing. Then  it  was  proposed  to  prove  a  letter  which  had  been 
lost,  by  a  witness  who  was  produced  for  that  purpose ;  this  was  held 
inadmissible,  for  the  reason  that  the  witness  had  never  seen  the  party 
write.2 

Money  loaned  —  usury  —  letters  —  signature. 

§  424.  In  an  action  for  borrowed  money,  a  witness  for  plaintiff  stated 
that  he  was  present  when  the  sum  of  £20  was  advanced  by  plaintiff  to 
defendant.  This  witness  stated  that  he  was  in  the  habit  of  writing 
letters  for  the  plaintiff,  and  he  admitted  that  a  letter  put  into  his 
hand  was  written  by  him,  by  direction  of  the  plaintiff  and  signed  by 
her ;  the  defendant's  counsel  then  put  another  letter  into  his  hand, 
which  he  said  was  not  written  by  him,  and  he  stated  that  he  did  not 
believe  it  was  written  or  signed  by  the  plaintiff.  A  second  witness 
was  called  by  plaintiff's  counsel,  for  defendant  wanted  to  show  both 
these  letters  to  this  witness,  and  ask  him  whether,  in  his  belief,  the 
two  letters  were  both  of  the  same  handwriting.  Lord  TENTERDEN, 
C.  J.,  said  :  "  I  think  that  that  question  cannot  be  put.  It  was 
formerly  held  that  persons  conversant  with  handwriting  could  be 
asked  whether  certain  letters  were  genuine  or  not ;  but  it  has  been 
since  held  that  that  is  not  evidence."3  A  defendant  in  an  action  of 
debt  pleaded  usury.  The  proof  of  usury  depended  on  the  authen- 
ticity of  an  account  purporting  to  be  signed  by  the  plaintiff.  The 
plaintiff  contended  that  it  was  a  forgery,  which  was  the  only  ques- 
tion in  the  cause.  It  was  held  that  a  witness  called  to  identify  hand- 
writing should  form  his  judgment  from  the  handwriting,  and  not 
from  extrinsic  circumstances.4 

1  Lodge  v.  Phipher,  11  Serg.&R.  333.        4  Mendes  da  Costa  v.   Pym,  2  Peake 

2  Rex  v.  Sir  T.  Culpepper,  Skin.  673.     Gas.  144. 
8  Clermont  v.  Tullidge,  4  Carr.  &  P.  1. 


296  THE  LAW  OF  IDENTIFICATION. 

Ejectment  —  marriage  —  lease  —  signature. 

§  425.  In  a  recent  case  in  New  York,  plaintiffs  brought  eject- 
ment, claiming  to  be  the  widow  and  sons  of  William  R.  Hynes, 
deceased,  and  to  identify  themselves  as  such  was  one  question  in  the 
case,  and  that  depended  upon  the  validity,  as  a  marriage  contract,  of 
what  took  place  in  his  life-time  between  the  intestate  and  the  plain- 
tiff, who  claimed  as  his  widow.  Enough  took  place,  it  was  said,  at 
those  times,  if  it  had  been  done  in  New  York,  to  have  made  a  valid 
contract.  "  Enough  took  place  afterward  to  furnish  a  presumption 
under  the  laws  of  this  State,  of  a  prior  legally-formed  and  subsisting 
marriage  relation."  And  as  to  the  lease  of  the  premises,  it  appeared 
that  the  court  did  not  permit  the  witness  Loader  to  testify  that  the 
handwriting  of  the  signature  to  the  lease  of  the  premises  in  Leverton 
street  was  that  of  the  adult  plaintiff ;  the  witness  had  never  seen  her 
write ;  he  had  no  knowledge  of  her  handwriting  save  that  got  by 
looking  upon  two  writings  other  than  the  signature  to  that  lease, 
which  other  writings  she  had  acknowledged  in  his  presence,  and 
with  the  writings  then  before  them,  to  have  been  penned  by  her. 
Those  other  writings  were  two  signatures  of  names  of  persons,  and 
one  written  name  of  a  place  of  residence,  and  as  shown  by  a  signa- 
ture-book kept  by  the  bank  at  which  she  had  opened  two  accounts 
of  money  deposited  by  her.  These  writings  were  not  in  evidence 
in  the  case ;  that  is,  they  were  not  produced  before  the  jury  and 
kept  in  court  throughout  the  trial.  The  witness  who  controlled  them 
was  examined  beyond  the  seas  on  commission.  He  produced  them 
before  the  commissioners,  but  refused  to  part  with  them.  Copies 
were  taken  in  manuscript  by  the  commissioners  and  annexed  to  the 
deposition  of  the  witness.  Copies  were  also  taken  by  the  phono- 
graphic process,  and  certified  to  by  tbe  commissioners,  and  annexed 
to  the  said  deposition.  "  The  witness  Loader  was  presented  to  the 
court,"  said  FOLGER,  C.  J.,  "  doubly  competent  to  speak  on  an  issue 
as  to  the  genuineness  of  the  handwriting  as  an  expert,  and  as  having 
personal  knowledge  of  the  handwriting  of  the  adult  plaintiff.  It 
does  not  appear  from  the  case  that  the  trial  court  determined  whether 
he  was  qualified  to  speak  as  an  expert.  We  will  assume  that  he 
was,  and  that  had  the  trial  court  thought  it  needful  to  pass  upon  the 
question,  it  would  have  held  that  he  was.  Yet,  in  our  judgment,  it 
was  not  proper  to  receive  his  testimony  as  an  expert  and  by  a  com- 
parison of  writings.  An  expert  in  handwriting,  when  speaking  only 
as  a  witness  from  a  comparison  of  handwriting,  that  is,  with  two 


HANDWRITING  —  COMPARISON.  297 

pieces  of  it  in  juxtaposition  under  his  eye,  should  have  before  him 
in  court  the  writing  to  which  he  testifies  and  the  writing  from  which 
he  testifies;  else  there  can  be  no  intelligent  examination,  either  in 
chief  or  cross  ;  nor  can  there  be  a  fair  means  of  meeting  his  testi- 
mony by  that  of  other  witnesses.  This  requirement  is  included  in 
the  rule  that  there  can  be  no  comparison  of  handwriting,  unless 
the  piece  of  writing  by  which  comparison  is  made,  are  properly  in 
evidence  in  the  case  for  some  purpose  other  than  that  of  being 
compared."1 

Comparison  —  English  and  American  rule  —  statute. 

§  420.  Witnesses  when  testifying  as  to  handwriting,  it  is  said, 
should  declare  their  belief  on  the  subject ;  but  in  an  English  case, 
Lord  KENYON  held  the  testimony  admissible,  when  the  witness 
merely  stated  that  the  paper  produced  in  evidence  was  like  the  hand- 
writing of  the  person  by  whom  it  purported  to  have  been  written.2 
But  later  English  cases  seem  to  doubt  the  soundness  of  this  rule.3 
Witnesses  are  sometimes  extremely  cautious  in  stating  their  belief' 
or  in  announcing  an  opinion,  a  witness  may  say  that  he  thinks. 

It  must  be  admitted  as  a  general  rule,  perhaps  without  exception, 
that  the  proof  of  handwriting  is  in  its  nature  a  comparison,  with  the 
exception,  of  course,  of  a  subscribing  witness,  or  one  who  wrote  the 
document  or  saw  it  signed  ;  in  such  case,  it  became  a  matter  of  fact, 
and  not  a  question  of  belief,  or  of  opinion ;  then  comparison,  belief 
or  opinion  is  not  necessary.  It  is  a  question  merely  of  previous 
knowledge.  This  is  a  rule  of  itself,  and  not  an  exception  to  the 
above  rule.4  The  English  rule,  prior  to  the  act  of  Parliament,  was 
held  by  the  courts  to  exclude  comparison  of  handwriting  to  ascer- 
tain whether  the  one  in  controversy  was  genuine,  had  been  adhered 
to  in  practice,  was  based  upon  no  possible  reason,  or  common  sense, 
or  common  justice,  but  merely  to  pacify  a  technicality  of  the  common 
law ;  and  when  the  English  courts  became  restive  and  evinced  a  dis- 
position to  recede  from  the  rule,  which  prevailed  without  reason, 
they  were  called  back  to  ancient  landmarks  by  the  iron  chain  of 
erroneous  precedent,  until  relieved  by  Parliament  in  1854.  Now, 
if  we  are  to  follow  English  precedents,  why  not  follow  them  in  leg- 
islation as  well  as  in  adjudications.  And  in  some  of  our  States  it 

1  Hynes  v.  McDermott,  82  N.  Y.   41  2  Garrells  v.  Alexander,  4  Esp.  37. 

(1880).     Citing  Randolph  v.  Loughlin,  3  Gagleton  v.  Kingston,  8  Ves.  476. 

48  id.  456;  Dubois  v.  Baker,  80  id.  "355;  4  Doe  v.  Suckermore,  5  A.  &  E.  731. 
Miles  v.  Loomis,  75  id.  288. 

38 


298  THE  LAW  OF  IDENTIFICATION. 

has  become  the  practice  to  admit  any  papers  to  the  jury  for  com- 
parison, and  this,  whether  they  are  relevant  to  the  issue  or  not.1  In 
fact  the  English  decisions,  long  before  the  act  of  Parliament  above 
referred  to,  will  be  found  in  all  sorts  of  confusion  ;  and  our  own  de- 
cisions, in  a  vain  attempt  to  follow  English  precedents,  are,  perhaps, 
not  less  confused. 

Same  —  statutes  —  constructions  —  omissions  —  comparison. 

§  427.  Still  there  are  other  questions  that  have  arisen,  and  may 
still  come  before  the  courts,  upon  the  construction  of  wise  and  well- 
digested  statutes  upon  this  important  subject.  It  is  difficult  to  enact 
a  statute  upon  a  subject  of  importance,  which  has  been  complicated, 
not  to  say  confused,  by  former  adjudications,  without  overlooking 
matters  which  relate  to  the  subject.  And  one  rule  of  statutory  con- 
struction seems  to  be  that  they  are  to  be  considered  with  reference 
to  former  adjudications,  if  any,  upon  the  subject.  Potter's  Dwarris 
274,  says :  "  Where  the  terms  of  a  statute  which  has  received  judicial 
construction  are  used  in  a  later  statute,  whether  passed  by  the 
legislature  of  the  same  State  or  country,  or  that  of  another,  that 
construction  is  to  be  given  to  the  later  statute.  *  *  *  It  is  to 
be  presumed  in  such  cases  that  the  legislature  who  passed  the  later 
statute  knew  the  judicial  construction  which  had  been  placed  on  the 
former  one,  and  such  construction  becomes  a  part  of  the  law."2 
The  statute  admitting  comparison  of  handwriting  by  witnesses  and 
jurors  has  doubtless  omitted  the  question  as  to  what  extent  the  wit- 
ness may  be  tested  by  cross-examination,  by  presenting  to  him  other 
documents,  not  proven  to  be  genuine,  nor  relating  to  the  question  at 
issue,  or  the  matter  in  controversy.  And  again :  the  act  fails  to  pro- 
vide for  the  mode  in  which  a  party  may  disprove  his  signature  to  a 
document  by  comparison,  and  this  must  remain  an  open  question 
until  settled  by  adjudication. 

Same  —  documents  —  thirty  years  old. 

§  428.  In  cases  of  ancient  documents,  where  witnesses  cannot  be 
produced  who  have  seen  the  person  write,  whose  handwriting  is  in 
dispute,  or  in  doubt,  the  rule,  of  course,  is  not  so  strict,  since  the  law, 
from  necessity,  does  not  require  the  same  degree  of  proof  as  in  doc- 

1  Lyon  v.  Lyman,  9  Conn.  55;  Moody  Ruckmaboye  v.  Mottichund,  32  Eng.  L. 

v.  Rowell,  17  Pick.  490;  Homer  v.  Wai-  &  Eq.  84;  Bogardus  v.  Trinity  Church, 

lis,  11  Mass.  809;  Richardson  v.  New-  4  Sandf.  Oh.  675;  Rigg  v.  Wilton,  18 

comb,  21  Pick.  815.  111.  15;  Adams  v.  Field,  21  Vt.  256. 

8  Com.    v.    Hartnett,     3    Gray,    450; 


HANDWRITING  —  COMPARISON.  299 

uments  recently  executed.1  The  law  has  fixed  the  time,  as  a  general 
rule,  that  they  prove  themselves  at  the  age  of  thirty  years.  This  is 
a  legal  presumption,  a  limitation  for  the  quiet  of  community;  em- 
phatically a  law  of  repose ;  yet,  questions  may  arise  in  which  the  hand- 
writing must  be  proved,  as  where  the  evidence  in  the  case  overcomes, 
or  rebuts  the  legal  presumption,  as  sometimes  in  a  disputed  pedigree 
of  the  claimant.2* 

Where  one  or  more  letters  were  seen  by  witness  —  rule  as  to. 

§  429.  It  was  held  in  Michigan  that  where  one  or  more  letters,  pur- 
porting to  come  from  a  certain  person,  and  known  by  the  addressee  to 
be  such  person,  have  been  received,  and  are  in  subsequent  transactions 
acted  upon,  they  may,  it  has  been  held  in  some  cases  in  questions  of 
handwriting,  be  admissible.  But  the  mere  receipt  of  letters  pur- 
porting to  be  from  a  person  never  seen,  and  with  whom  no  business 
relations  had  existed  which  were  based  on  them  as  genuine,  will  not 
be  regarded  as  means  of  knowledge.  And  if  there  be  no  direct 
knowledge  of  handwriting,  there  should  be  something  to  assure  the 
recipient  of  letters,  in  a  business  way,  of  their  genuineness,  before 
he  can  testify  as  to  the  writer,  or  use  comparisons  of  handwriting. 
And  so  where  a  witness,  who  was  called  to  prove  the  indorsement  on 
a  note,  said  he  never  saw  the  indorser  write,  but  had  one  or  two  letters 
from  him,  and  saw  two  or  three  that  the  bank  had  received,  and  be- 
lieved the  signature  was  his.3 

But  in  order  to  the  proof  of  the  execution  of  a  deed  or  mortgage, 

1  Doe  v.  Suckermore,  5  A.  &  E.  717.         3  Pinkham  v.  Cockell,  77  Mich.  265. 
s  Taylor  v.  Cook,  8  Price,  652;  More- 
wood  v.  Wood,  14  East,  328. 

*  In  Ram  on  Facts  (4th  ed.  page  70),  we  find  in  the  text  this  rule:  "  A  person  who  comes  to 
recognize  another's  handwriting  is  obviously  very  liable  to  fall  into  error.  One,  and  an  abund- 
ant source  of  mistake  is,  that  many  persons  write  very  much  alike:  so  much  so,  that  it  is  often 
difficult  to  distinguish  one  person's  hand  from  that  of  another."  In  a  note  he  says:  "One 
among  the  many  instances  that  might  be  cited  in  corroboration  of  the  text  was  what  occurred 
in  the  course  of  the  investigation  of  the  charge  of  forgery  against  John  W.  Hunter,  in  New 
York.  Mr.  Hunter  was  employed  in  the  sub-treasury,  and  Mr.  Cisco,  the  head  of  the  department, 
was  lexamined  as  a  witness,  and  swore  positively  that  no  person  could  imitate  Mr.  Hunter's 
handwriting  so  as  to  deceive  him  (Cisco),  and  that  he  (Cisco)  could  not  be  imposed  upon  in  re- 
gard to  writing  with  which  he  was  familiar.  When  he  had  committed  himself  beyond  all  reser- 
vation to  this  positive  opinion,  he  was  presented  by  ex- Judge  Pierpont,  the  counsel  for  Mr. 
Hunter,  with  a  slip  of  paper  with  writing  on  it,  and  was  asked  if  that  was  his  own  handwriting. 
He  replied  that  it  was.  His  attention  was  called  to  the  fact  that  it  was  somewhat  blurred,  but 
he  said  that  made  no  difference;  he  recognized  it  perfectly;  it  was  his  own.  The  counsel  then 
informed  the  court  that  the  paper  was  written  by  Mr.  Levi,  a  clerk  of  Mr.  Low,  in  the  presence 
of  several  eminent  witnesses  who  had  attached  their  mark  to^it  so  as  to  be  able  to  identify  It, 
and  that  Mr.  Cisco  had  thus  unwittingly  testified  to  another  man's  handwriting  as  his  own;  If 
he  could  be  so  easily  deceived  in  his  own  handwriting,  how  much  more  likely  was  he  to  be  mis- 
taken in  that  of  another  man." 


300  THE  LAW  OF  IDENTIFICATION. 

it  is  not  necessary  that  the  witness  called  for  that  purpose  should 
have  been  an  attesting  witness  to  the  execution  of  the  instrument. 
And  so  in  an  action  in  Missouri  to  foreclose  a  mortgage,  where  it  was 
shown  that  the  witness  was  not  present  when  it  was  executed,  his 
evidence  was  not  inferior  to  the  proof  of  the  same  fact  by  one  whose 
name  appeared  as  a  subscribing  witness.1 

1  Moss  v.  Anderson,  7  Mo.  337. 


CHAPTER  XI. 


HANDWRITING  —  COMPARISON  —  Continued. 


SEC.  SEC. 

430.  Handwriting  —  comparison — civil-    456. 

law  rule.  457. 

431.  Same  —  same  —  common-law  rule. 

432.  Same  —  comparison  —  signature  of    458. 

attesting  witness. 

433.  Witness  —  voluntary  attestation.        459. 

434.  Evidence  —  identification  of  hand- 

writing. 460. 

435.  Witnesses  to  a  will  —  proof  of  sig- 

nature. 461. 

436.  Proof  of  signature  —  rule  in  New    462. 

York.  463. 

437.  Same  —  rule  in  Massachusetts. 

438.  Proof  of  confession  of  signature  to    464. 

a  note. 

439.  Proof  of  unregistered  deed.  465. 

440.  Proof  of  signature  —  rule  in  New 

Hampshire.  466. 

441.  Disputed  writing  —  rule  in  Ala- 

bama. 467. 

442.  Same  —  English  statute. 

443.  Writing  —  witness  —  cashier    of    468. 

bank. 

444.  Draft  —  proof  of  letters.  469. 

445.  Maker  of  note  —  partial  payment — 

limitations.  470. 

446.  Proof  —  handwriting  —  limited 

knowledge.  471. 

447.  Signature  —  identity  —  bill  of  ex. 

change.  472. 

448.  Alias — middle  names  —  addition 

to  name.  473. 

449.  Middle    letter  —  immaterial    vari- 

ance. 474. 

450.  Middle  letters  omitted  in  name  — 

}  transposed.  475. 

451.  Handwriting  —  bill  of  exchange  — 

acceptance.  476. 

452.  Same  —  suit  on  note  —  identity  of 

maker.  477. 

453.  Same — writing — subscribing    wit- 

ness —  rule  in  England.  478. 

454.  Signature  on  receipt  —  proof  of  — 

insufficient.  479. 

455.  Attesting    witness  —  proving    his 

own  signature. 


Means  of  knowing  handwriting. 

Handwriting  —  imitation  —  spell- 
ing detected. 

Confession  of  signature  —  Ameri- 
can rule. 

Murder  —  confession  —  letters  — 
writings. 

Comparison  —  writing  known  to 
the  court. 

Same  —  rule  in  England. 

Same  —  rule  in  Alabama. 

'Comparison  of  hands  —  skill  of 
witness. 

Comparison  —  experts  —  bank  offi- 
cers. 

Passing  counterfeit  bank  bills  — 
evidence. 

Same  —  evidence  —  rule  in  South 
Carolina. 

Same  —  testimony  —  officers  of  the 
bank. 

Same  —  bill  of  exchange  —  bank 
note. 

Larceny  —  bank  notes  —  not  pro- 
duced on  trial. 

Counterfeiting  —  evidence  —  com- 
petent witnesses. 

Witness  —  post-office  clerk  —  de- 
tection of  forgeries. 

Same  —  signature  —  warrant  of  at- 
torney. 

Libel  —  signature  —  expert  testi- 
mony received. 

Libel  —  newspapers  —  identity  — 
type  —  handwriting. 

Words  —  insurance  —  proof  of 
policy. 

Bond  attested  in  the  absence  of 
obligor. 

Alteration  in  written  instrument- 
word. 

Witness  —  knowledge  —  how  ac- 
quired. 

Same  —  English  precedents. 


Handwriting  —  comparison  —  civil-law  rule. 

§  430.  It  was  held  in  Missouri,  under  the  act  of  1839,  that  it  was 
not  necessary  to  call  the  subscribing  witnesses  to  the  deeds  to  iden- 


302  THE  LAW  or  IDENTIFICATION. 

tif y  the  grantor,  or  account  for  his  absence,  nor  was  their  presence 
required  by  the  rule  that  the  best  evidence  shall  be  produced.  The 
proof  of  the  identity  of  a  grantor  in  a  deed,  by  a  person  who  is  not 
a  subscribing  witness,  is  not  evidence  inferior  to  the  proof  of  the 
fact  by  one  who  has  attested  it  as  a  witness.1  As  to  the  proof  of 
handwriting  by  comparison,  it  was  not  permitted  by  the  strict  rules 
of  the  common  law  of  England,  with  perhaps  some  few  exceptions. 
But  not  so  under  rules  of  the  civil  law  —  for  a  more  reasonable  and 
liberal  rule  and  practice  prevailed  under  the  enlightened  system  of 
Roman  jurisprudence.  There  the  genuineness  of  a  doubtful,  dis- 
puted or  contested  writing  might  be  established  and  sustained  by 
witnesses  comparing  such  writing  with  other  writings  acknowledged 
or  proved  to  be  genuine.  Yet,  upon  this  there  arose  a  question  of 
very  considerable  importance,  which  brought  out  conflicting  decis- 
ions ;  that  was,  as  to  the  nature,  character  or  kind  of  papers  or  writ- 
ings that  were  to  be  taken  as  a  basis  for  such  comparison.  It  was 
supposed  at  first,  by  some,  that  in  order  to  prevent  forgery,  writings 
to  be  accepted  as  a  basis  of  comparison  should  be  attested  by  at  least 
three  witnesses,  or  be  a  matter  of  public  register.  But  this  was 
found  to  be  without  reason,  and  hence  gave  way  to  the  more  liberal 
rule.2 

Same  —  same  —  common-law  rule. 

§  431.  But  as  above  suggested,  this  was  not  permitted  by  the  harsh 
rules  of  the  common  law.  Where  an  action  of  assumpsit  was  brought 
on  a  promissory  note,  the  declaration  stated  David  Jones  and  John 
Jinkins  made  their  promissory  note  for  £250  in  favor  of  the  de- 
fendant, who  indorsed  it  to  plaintiff,  etc.  The  plea  was  that  he  did 
not  indorse  the  note.  It  was  insisted  by  Maule,  for  the  plain- 
tiff, that  in  addition  to  the  usual  proof  of  the  defendant's  hand- 
writing by  the  evidence  of  the  witnesses  acquainted  with  it,  he 
should  also  put  into  the  hands  of  the  jury  a  great  number  of  other 
bills  of  exchange  and  notes  which  bore  the  genuine  signature  of  the 
defendant,  and  which  had  been  paid,  so  that  the  jury  might  com- 
pare the  handwriting  of  those  signatures  with  the  signature  in  dis- 
pute in  the  present  case,  and  cited  authorities.  But  in  deciding  this 
question,  LITTLEDALE,  J.,  said:  "  The  strictness  of  the  ancient  rule 
respecting  the  comparison  of  handwriting  is  broken  in  upon  by  the 

1  Moss  v.  Anderson,  7  Mo.  337.  &  P.  548;  Qarrells  v.  Alexander,  4  Esp. 

*  Hughes  v.  Rogers,  8  Mees.  &  Wels.     87. 
138.     And  see  Bromage  v.  Rice,  7  Carr. 


HANDWRITING  —  COMPARISON.  303 

modern  cases.  *  *  *  I  shall  reject  the  evidence  ;  the  jury  are 
not  to  compare  any  other  writings  with  that  in  dispute,  except  docu- 
ments which  are  otherwise  evidence  in  the  cause.1 

Same  —  comparison  —  signature  of  attesting  witness. 

§  432.  In  another  English  case  the  question  was  as  to  the  genu- 
ineness of  the  signature,  not  of  the  defendant,  but  of  a  subscrib- 
ing witness  to  the  execution  of  a  bond.  In  this  case,  a  witness 
was  introduced  to  prove  the  signature  of  an  attesting  witness  to 
a  bond  alleged  to  have  been  given  by  a  party  then  deceased ;  the 
witness  stated  that  the  signature  was  not  in  the  handwriting  of  the 
supposed  attesting  witness.  Another  paper  (not  in  evidence  in  the 
cause)  was  placed  in  the  hands  of  the  witness,  which  he  also  stated 
was  not  in  the  handwriting  of  that  person.  It  was  held  that  the  plain- 
tiff could  not  prove,  for  the  purpose  of  contradicting  the  witness  in 
the  box,  that  this  paper  was  actually  written  by  the  attesting  witness 
to  the  bond.  The  reason  for  rejecting  it  does  not  seem  very  clear.2 

Witness  —  voluntary  attestation. 

§  433.  In  an  action  on  a  promissory  note  attested  by  two  wit- 
nesses, it  was  held  that  a  person  who  sees  an  instrument  executed, 
but  is  not  requested  by  the  parties  to  attest  it,  cannot,  by  afterward 
putting  his  name  to  it,  prove  it  as  an  attesting  witness.  One  of  the 
witnesses  to  the  note  was  called  to  prove  it ;  he  stated  that  he  did 
not  put  his  name  to  it  in  the  presence  of  the  defendant,  nor  was  he 
ever  called  upon  by  the  defendant  to  attest  it ;  but  he  saw  the 
defendant  deliver  it  as  his  note  of  hand,  to  the  payee,  and  afterward 
put  his  name  to  it  without  the  knowledge  of  the  defendant.  Lord 
ELLENBOROUGH  said :  "  I  cannot  receive  the  evidence  of  this  person 
&a  an  attesting  witness  to  the  note.  He  was  no  attesting  witness, 
but  a  mere  volunteer.  If  the  other  person,  whose  name  is  on  the 
note  as  attesting  witness,  really  was  so,  it  can  only  be  proved  by  his 
evidence."  It  appeared,  however,  that  this  latter  person  had  placed 
his  signature  to  the  note  exactly  under  the  same  circumstances  as 
the  former  witness  had  done,  and  the  defendant's  acknowledgment 
was  considered  sufficient  to  fix  the  liability  upon  him  as  the  maker 
of  the  note,  and  the  plaintiff  had  a  judgment.3 

'  Bromage  v.  Rice,  7  Carr.  &  P.  548.        *  Hughes  v.  Rogers,  8  M.  &  W.  123. 
And  see  Allesbrook  v.  Roach,  1  Esp.  351;        8  M'Craw  v.  Gentry,  3  Campb.  232. 
Griffith  v.  Williams,   1  C.  &  J.  47;  So- 
lita  v.  Yarrow,  1  Mood.  &  Rob.  133. 


304  THE  LAW  OF  IDENTIFICATION. 

Evidence  —  identification  of  handwriting. 

§  434.  Where  the  proof  of  the  handwriting  admits  of  secondary- 
evidence,  it  will  not  be  necessary  to  prove  it  by  more  than  one  wit- 
ness.1 This  is  the  general  rule,  whatever  the  instrument  may  be, 
when  it  is  necessary  thus  to  identify  the  handwriting.2  But  this,  of 
itself,  is  not  sufficient  —  it  must  be  followed  up  by  proof  of  the 
identity  of  the  person  who  is  alleged  to  have  signed  the  paper,  if 
his  identity  is  in  dispute  or  in  doubt.  This  is  obviously  essential, 
unless  that  fact  is  to  be  presumed  from  the  identity  of  the  name.3 
This  rule  finds  an  illustration,  thus :  One  William  Seal  Evans  was 
sued  for  goods  sold  and  delivered ;  it  was  proved  that  the  goods  were 
sold  to  a  man  of  that  name  who  was  a  customer,  and  that  he  had 
written  a  letter  acknowledging  the  receipt  of  the  goods.  That  did 
not  prove  that  this  person  was  the  defendant.  And  as  to  the  suffi- 
ciency of  the  proof  of  the  handwriting  of  an  attesting  witness,  the 
learned  judges  are  not  entirely  agreed. 

Witnesses  to  a  will  —  proof  of  signature. 

§  435.  In  .an  action  of  trespass  to  try  the  title  of  land  in  South 
Carolina,  plaintiff  introduced  a  grant  to  James  Moore,  and  next,  the 
will  of  James  Moore,  and  as  two  of  the  subscribing  witnesses  were 
dead,  and  the  other  had  left  the  State,  a  witness,  John  Pratt,  was 
called  to  prove  all  their  handwritings,  and  he  proved  the  handwrit- 
ing of  each  of  the  three  witnesses  to  the  will.  It  was  held  that  the 
proving  of  the  handwriting  of  the  three  witnesses  to  the  will  by  any  one 
credible  witness  was  sufficient,  if  they  were  dead  or  out  of  the  State; 
that  it  did  not  by  any  means  impugn  or  contravene  the  statute  of 
frauds,  which  requires  three  witnesses  to  a  will ;  on  the  contrary,  it 
established  the  requirements  of  the  statute.4  In  an  action  of  eject- 
ment in  England  the  proof  of  a  will  became  necessary  at  the  trial. 
"  The  lessor  of  the  plaintiff  produced  and  proved  the  will  of  1743, 
under  which  he  was  devisee  of  the  estate  in  fee.  To  encounter 
this  evidence,  the  defendant  produced  this  will  or  instrument  of 
1745,  and  both  the  witnesses  to  it  (Elizabeth  Mitchell  and  William 
Medlicott]  being  dead,  they  proved  their  handwritings,  and  also  the 

1  Adam  v.  Kerr,  1  B.  &  P.  360.  18;    Prince  v.  Blackburn,  2  East,  250; 

3  Powers  v.  M'Ferran,  2  8.  &  R.  44;  Cunliffe  v.  Sefton,  id.  183. 

Webb  v.  St.  Lawrence,  8  Bro.  P.  C.  640;  3  Nelson  v.  Whittall,  1  B.  &  Ad.  19; 

Douglass    v.    Sanderson,  2    Dall.    116;  Whitelocke  v.  Musgrove,  1  C.  &  M.  511; 

Hamilton  v.  Marsden,  6  Binn.  45;  Kay  v.  Warren  v.  Anderson,  8  Scott,  384. 

Brookman,  8  C.  &  P.  555;  Adam  v.  Kerr,  «  Hopkins  v.  DeGraffenreid,  2  Bay.  (S. 

1  B.  &  P.  860;  Sluby  v.  Cham  pi  in,  4  C.)  187. 
Johns.  461 ;  Cooke  v.  Woodrow,  5  Crancb, 


HANDWKITING  —  COMPARISON.  305 

handwriting  of  old  John  Clymer^  in  the  common  and  ordinary 
form."1 

Proof  of  signature  —  rule  in  New  York. 

§  436.  In  an  action  of  ejectment  in  New  York  in  1822,  plaintiff 
offered  in  evidence  the  last  will  of  Amie  LeGrange,  of  January 
28,  1796.  To  prove  the  will  he  called  John  N.  Quackenbush,  one 
of  the  subscribing  witnesses,  who  proved  the  due  execution  of  the 
will  by  the  executrix  and  all  the  handwriting  of  the  other  witnesses.2 
The  New  York  court  has  laid  down  a  rule  in  these  cases,  where  it 
is  necessary  to  make  proof  of  sealed  instruments,  thus :  "  (1)  The 
witness  must  be  produced  if  practicable.  (2)  If  he  cannot  be 
found,  or  his  testimony  cannot  be  used,  his  handwriting  must  be 
proved.  (3)  If  his  handwriting  cannot  be  proved,  after  diligent  ex- 
ertion for  that  purpose,  proof  of  the  handwriting  of  the  party  exe- 
cuting the  instrument  is  admissible  in  evidence."  But  evidence 
that  a  subscribing  witness  cannot  be  found  will  not  warrant  the  in- 
ference that  his  handwriting  cannot  be  proved.  The  party  seeking 
to  avail  himself  of  such  testimony  must  show  due  diligence  to  ob- 
tain as  well  proof  of  the  handwriting  as  attendance  of  the  witness. 
And  it  may  be  as  well  to  superadd  proof  of  the  handwriting  of  the 
person  who  executed  the  instrument.3 

Same  —  rule  in  Massachusetts. 

§  437.  According  to  the  above  rule,  as  announced  in  New  York, 
the  proof  of  the  signature  of  the  party  who  executed  the  paper  can- 
not be  made  unless  you  have  made  an  exertion  and  failed  to  prove 
the  signature  of  the  subscribing  witness.  It  is  difficult  to  perceive 
any  good  reason  why  this  order  of  things  should  not  be  exactly  the 
reverse ;  and  it  has  been  so  held  in  Massachusetts,  with  what  appears 
to  be  better  reason.  In  a  well-considered  case  involving  this  ques- 
tion, after  commenting  upon  the  case  on  its  merits,  SHAW,  C.  J., 
said :  "  Different  rules  prevail  on  this  subject ;  in  some  instances, 
and  this  we  beh'eve  is  the  more  general  rule,  it  has  been  held  that 
where  an  instrument  under  seal,  and  commonly  requiring  attesting 
witnesses,  is  to  be  proved  by  secondary  evidence,  the  handwriting  of 
the  subscribing  witness  is  to  be  proved  in  the  first  instance.  The 
court  are  of  opinion  that  where  the  attesting  witnesses  are  not  within 

1  Clymer  v.  Littler,  3  Burr.  1247.  3  Jackson    v.     Waldron,    13    Wend. 

2  Jackson  v.  Le  Grange,    19  Johns.     178. 
386. 

39 


306  THE  LAW  OF  IDENTIFICATION. 

the  jurisdiction  of  the  court,  proof  of  the  handwriting  of  the  party 
is  a  species  of  proof  which  has  often  been  admitted  in  this  Common- 
wealth, and  is  more  direct  and  satisfactory  than  that  of  the  hand- 
writing of  the  witnesses."1  This  seems  to  be  a  rule  based  on  sound 
reason. 

Proof  of  confession  of  signature  to  a  note. 

§  438.  An  early  case  in  New  York,  which  went  up  on  certiorari, 
was  brought  on  a  promissory  note,  to  which  there  was  a  subscribing 
witness.  Defendant  denied  the  execution  of  the  note,  and  plaintiff 
called  a  witness  to  prove  that  defendant  had  confessed  that  he  exe- 
cuted the  note  to  plaintiff ;  this  was  objected  to,  and  the  objection 
overruled,  and  the  evidence  received,  and  there  was  judgment  for 
the  plaintiff,  when  it  came  up  on  error.  SPENCER,  J.,  said  :  "  I 
think  it  results  that  an  instrument,  though  attested  by  a  subscribing 
witness,  may  be  proved  by  the  confession  of  the  party  who  gave  it."2 
This  decision  is  referred  to  in  a  note  to  a  case  subsequently  decided 
in  Maine.3 

Proof  of  unregistered  deed. 

§  439.  Adopting  the  same  prevailing  rule  as  to  secondary  evi- 
dence, the  court  of  Maine,  in  1820,  required  diligent  inquiry  after 
the  subscribing  witness  to  a  deed.  An  execution  issued  and  was 
levied  upon  lands  as  the  estate  of  George  Whittemore,  and  in  an  ac- 
tion to  recover  possession  of  the  land  against  the  judgment  debtor, 
the  tenant,  to  show  an  intermediate  conveyance  from  the  demandant 
to  the  judgment  creditor,  proved  the  execution  of  a  deed  of  the  land, 
seen  by  the  witness  in  the  possession  of  the  debtor,  but  not  regis- 
tered ;  and  he  also  made  proof  of  the  fact  of  the  signature  of  the 
demandant  as  grantee  in  the  said  deed  of  conveyance,  and  of  one  of 
the  subscribing  witnesses  to  the  deed,  who  was  also  the  magistrate 
before  whom  the  deed  was  acknowledged ;  but  who,  being  interested, 
could  not  be  examined  as  a  witness.  This  was  held  to  be  insufficient, 
without  proof  of  diligent  inquiry  after  the  other  subscribing  witness 
to  the  deed.3 

Proof  of  signature  —  rule  in  New  Hampshire. 

§  440.  It  is  well  recognized  as  a  very  general  rule  in  the  law  of 
evidence,  that  the  best  evidence  must  be  produced  which  the  nature 

1  Valentine  v.  Piper,  22  Pick.  90.  «  Whittemore  v.   Brooks,   1  Qreenl. 

1  Hall     v.     Phelps,     2    Johns.    451     57. 
(1807). 


HANDWRITING  —  COMPARISON.  307 

of  the  case  will  permit,  and  which  is  within  the  power  of  the  party. 
In  an  action'of  assumpsit  on  a  promissory  note,  to  which  there  was  a  sub- 
scribing witness,  plaintiff  offered  evidence  to  show  that  the  witness 
resided  out  of  the  State,  produced  evidence  to  prove  his  handwriting, 
and  that  of  the  defendant.  It  was  held  that,  as  the  witness  resided 
beyond  the  jurisdiction  of  the  court  and  in  another  'State,  the 
testimony  was  competent.* l  Now,  we  have  seen  that  in  New  York, 
the  handwriting  of  the  subscribing  witness  must  be  proved  in  the 
first  instance,  or  good  cause  shown  why  it  is  not  done.2  In  Mas- 
sachusetts it  is  held  to  be  more  direct  and  satisfactory  to  prove  first, 
the  signature  of  the  party  who  executed  the  instrument.3  And  in 
New  Hampshire  it  is  proper  to  admit  the  proof  of  the  signature  of 
both  the  subscribing  witness  and  the  obligor.  And  in  New  York, 
it  was  competent  to  prove  the  confession  of  defendant,  that  he  did 
execute  the  note.4  And  it  appears  that  in  England,  in  one  case,  at 
least,  a  witness  has  been  permitted  to  speak  of,  and  as  to  the  genu- 
ineness of  a  person's  mark,  made  when  he  could  not  write  his  name, 
from  having  seen  it  affixed  by  him  on  several  occasions,  yet  it  might 
be  difficult  to  detect  the  forgery  of  a  man's  mark.  This  looks  as 
though  it  had,  at  least,  gone  to  the  very  verge  of  the  law  on  the 
subject.5 

Disputed  writing  —  rule  in  Alabama. 

§  441.  It  was  held  in  Alabama,  in  1841,  that  proven  specimens  of 
handwriting  of  the  defendant  could  not  be  given  in  evidence  to  the  jury, 
to  be  compared  by  them  with  the  signature  to  the  genuine  writing, 
the  genuineness  of  which  is  controverted.  The  action  was  on  a 
promissory  note;  the  genuineness  of  defendant's  signature  thereto  was 
put  in  issue.  GOLDTHWAIT,  J.,  following  a  leading  English  case, 
briefly  said :  "  This  is  one  of  those  questions  upon  which  so  much 
has  been  said  and  written,  that  a  review  of  all  the  cases  would  be 
alike  impracticable  and  uninteresting.  We  shall,  therefore,  content 

1  Dunbar  v.   Harden,   13  N.  H.  311.  Delancey,  7  T.  R.  266,  note;  Whittemore 

Citing  1  Phil.  Ev.  (2d  ed.)  473;  Holmes  v.  Brooks,  1  Greenl.  59,  and  note, 

v.  Pontin,  1  Peake,  99;  Cooper  v.  Mars-  3  Jackson  v.  Waldron,  13  Wend.   178. 

den,  1  Esp.  1;  Burt  v.  Walker,  4  B.  &  3  Whittemore  v.    Brooks,  1    Greenl. 

Aid.  697;  Dudley  v.  Sumner,  5  Mass.  462;  57. 

Cooke  v.  Woodrow,  5  Cranch,  13;  Jack-  4  Hall  v.  Phelps,  2  Johns.  451  (1807). 

son  v.  Burton,  11  Johns.  64;  Wallis  v.  5  George  v.  Surrey,  1  M.  &  Malk.  516. 

*  In  Pytt  v.  Griffith,  6  J.  B.  Moore,  538,  PARK,  J.,  said :  "  Formerly  proof  of  the  handwriting 
of  an  attesting  witness  was  only  admissible  where  such  witness  was  dead;  and  I  can  remember 
the  first  deviation  from  that  rule,  when  it  was  extended  to  cases  where  the  party  was  abroad,  or 
out  of  the  jurisdiction  of  the  courts  of  this  country." 


308  THE  LAW  OF  IDENTIFICATION. 

ourselves  with  declaring  the  rule  as  we  consider  it  exists  at  the  pres- 
ent day.  Comparison  of  handwriting,  by  submitting  different  writ- 
ings having  no  connection  with  the  matter  in  issue,  is  not  permitted 
by  law.  The  present  case  presents  the  naked  question,  whether  sig- 
natures proved  to  be  in  the  defendant's  handwriting  can  be  given  in 
evidence  to  the  jury,  to  enable  them  to  determine,  by  comparison 
with  the  disputed  signature,  whether  the  letter  is  genuine  or  other- 
wise. In  our  opinion  this  was  not  competent  evidence.  We  decline 
entering  into  a  discussion  whether  there  are  any  cases  in  which  mere 
comparison  is  permitted,  though  it  is  obvious  that  when  more  than  one 
paper  is  before  the  jury  as  evidence,  a  comparison  will  be  made,  if  any 
dispute  takes  place  as  to  the  authenticity  of  either.  We  may  also  add 
our  wish  to  be  understood  as  neither  deciding  or  intimating  an  opin- 
ion on  any  other  than  the  precise  question  now  presented."  Thus 
following  the  English  rule  on  the  subject.1 

Same  —  English  statute. 

§  442.  The  unsettled  condition  of  this  question  in  this  country 
certainly  demands  some  uniform  system  of  practice,  that  we  may 
know  what  the  law  is  upon  this  important  subject.  Many  of  our 
courts  held  as  we  see  announced  by  the  Alabama  court,  in  the  pre- 
ceding section  ;  and  most  of  them,  without  attempting  to  give  a  rea- 
son, except  to  follow  the  leading  English  cases,  and  especially  SucTc- 
ermore's  case,  so  often  cited.  So  unjust  was  the  rule,  that  Parliament 
took  it  in  hand  in  1854,  and  passed  the  "  Common  Law  Procedure 
Act,"2  which  provides  that  "  comparison  of  a  disputed  handwriting 
with  any  writing  proved  to  the  satisfaction  of  the  judge  to  be  genu- 
ine shall  be  permitted  to  be  made  by  witnesses  ;  and  such  writings,  and 
the  evidence  of  witnesses,  respecting  the  same,  may  be  submitted  to 
the  court  and  jury  as  evidence  of  the  genuineness  or  otherwise  of  the 
writing  in  dispute."  And  so  this  troublesome  question  is  settled  in 
England  by  statute. 

Writing  —  witness  —  cashier  of  bank. 

§  443.  In  a  case  decided  in  Ohio  as  early  as  1833  it  was  held  that 
while  those  who  gave  to  the  jury  an  opinion,  or  the  greater  num- 
ber of  them,  upon  a  disputed  signature,  believed  that  it  was  that  of 
the  defendant,  the  counsel  claimed  that  the  superior  skill  and  op- 
portunity of  the  defendant's  witnesses  entitled  them  to  the  most 

1  Little  v.  Beazley,  2  Ala.  708.  »  17  &  18  Viet.,  chap.  125  (1854). 


HANDWRITING  —  COMPARISON.  309 

weight,  and  particularly  that  the  experience  acquired  by  the  cashier 
of  a  bank  enables  him  to  judge  with  greater  certainty  of  handwriting. 
"It  was  true,"  said  the  court,  "that  experience  and  practice  in  judg- 
ing of  writing,  as  well  as  experience  and  practice  in  every  thing  else, 
will  enable  a  witness  more  readily  to  form  an  opinion  upon  the  sub- 
ject of  his  experience ;  but  the  knowledge  is  not  confined  to  particu- 
lar stations.  Any  person  may  acquire  it."  Experts  in  hand- 
writing may  have  acquired  a  knowledge  thereof ;  but  that  is  no 
good  reason  why  all  other  witnesses  should  be  excluded.  In  the 
charge  to  the  jury,  the  court  said :  "  We  judge  of  writing  as  of  other 
things,  by  its  individual  character  as  a  whole.  You  must  take  the 
opinion  of  these  witnesses,  then,  altogether,  and  judge  of  their  testi- 
mony as,  under  all  the  circumstances,  they  shall  appear  entitled  to 
weight  from  their  opportunity  of  knowing  the  defendant's  handwrit- 
ing, and  your  estimate  of  their  skill  and  judgment.  A  cashier  of  a 
bank  is  entitled  to  no  more  credit  than  any  other  person  of  equal 
skill."1 

Draft  —  proof  of  letters. 

§  444.  An  action  was  brought  for  money  had  and  received. 
Wells,  Fargo  &  Co.  sent  a  draft  to  plaintiff  from  San  Francisco  to 
New  Bedford,  Mass.,  but  sent  it  in  a  letter  to  the  care  of  defendant. 
When  it  arrived  plaintiff  had  gone  to  sea  on  a  whaling  voyage. 
There  was  evidence  that  defendant  opened  the  letter,  indorsed  plain- 
tiff's name  on  the  draft,  and  sold  it  to  a  broker.  Defendant  claimed 
that  he  had  authority  to  do  what  he  did.  The  non-production  of 
the  letter  being  accounted  for,  the  defendant  offered  to  prove  the 
contents  of  two  letters,  which  had  been  seen,  and  which  purported  to 
be  from  Manuel,  and  authorized  the  appropriation  of  the  money 
which  might  be  obtained  upon  the  draft  by  Isabella,  for  whom  he 
claimed  to  have  acted  in  the  matter.  He  stated  that  he  did  not 
know  Manuel's  handwriting,  and  had  never  seen  him  write.  This 
evidence  was  rejected.  The  court  said :  "  The  rule  in  Massachusetts 
in  regard  to  the  admission  of  evidence  to  identify  handwriting  is 
much  more  liberal  than  in  England,  and  in  some  of  the  other  States  ; 
but  the  decisions  of  this  Commonwealth  justify,  if  they  do  not  re- 
quire, the  rejection  of  the  evidence  offered  in  this  case."2 

1  Murphy  v.  Hagerman,  Wright  (Ohio),  315;  Com.  v.  Eastman,  1  Gush.  189,  216; 

292.  Brigham  v.  Peters,  1  Gray,  139  ;    Mc- 

9  Nunes  v.  Perry,  113  Mass.  274(1873).  Keone  v.  Barnes,  108  Mass!  344. 
Citing  Richardson  v.  Newcomb,  21  Pick. 


310  THE  LAW  OF  IDENTIFICATION. 

Maker  of  note  —  partial  payment  —  limitations. 

§  445.  A  joint  and  several  promissory  note  was  made  by  defend- 
ant Porter,  John  Hoskins  Shearman,  Thomas  Shearman  and  James 
Wheeler.  The  making  of  the  note  was  proved,  and  the  question 
presented  arose  upon  the  statute  of  limitations.  The  note  was 
dated  July  12,  1824,  and  payable  on  demand.  To  take  the  case  out 
of  the  statute,  the  plaintiff  proved  that  a  person  named  Thomas 
Shearman  had  paid  a  part  of  the  principal  and  interest  on  the  note, 
within  six  years  next  before  the  bringing  of  the  suit.  The  plaintiff's 
counsel  proposed  to  prove  that  the  signature  of  Thomas  Shearman 
was  in  the  handwriting  of  the  person  who  had  made  the  payment ; 
to  which  defendant's  counsel  objected,  as  there  was  a  subscribing 
witness  to  Thomas  Shearman's  signature  on  the  note,  who  was  not 
called.  To  meet  this  objection  it  was  proved  that  the  signature  of 
Thomas  Shearman  was  on  the  note  before  defendant  signed  it ;  and 
that  the  defendant  and  Wheeler  had  executed  the  note  as  sureties  to 
the  two  Shearmans,  whose  names  were  on  the  note.  The  judge  ex- 
pressed the  opinion  that  the  evidence  did  not  show  prima  facie  that 
the  payment  had  been  made  by  a  party  to  the  note ;  but  directed  a  ver- 
dict for  the  plaintiff,  with  leave  to  move  for  a  nonsuit.  Whitehurst 
showed  cause.  The  defendant  is  not  entitled  to  dispute  the  fact 
that  Thomas  Shearman  was  a  party  to  the  note ;  and  then  the  case 
is  within  the  rule.  Whitcomb  v.  Whiting,  1  Doug.  652,  and  other 
decisions  of  the  same  class.  The  defendant,  having  signed  the  note 
as  surety,  has,  in  effect,  subscribed  his  name  to  a  representation  that 
Thomas  Shearman  was  indebted  ;  he  is,  therefore,  estopped  from 
disputing  that  Shearman  was  indebted,  or  that  he  might  act  (as  by 
making  payment)  in  respect  of  this  note.  And  his  signature  follow- 
ing that  of  Thomas  Shearman  is  equivalent  to  representation  that  the 
latter  is  genuine.  If  the  facts  do  not  amount  to  an  estoppel,  they  are 
at  least  conclusive  evidence  against  the  defendant.  The  rule  was 
made  absolute.  The  court  held  that  they  could  not  show  that  the 
name  on  the  note  was  in  Shearman's  handwriting  without  calling 
the  subscribing  witness,  and  without  this  there  was  no  prima  facie 
case  in  answer  to  the  plea.1 

Proof —handwriting  —  limited  knowledge. 

§  446.  In  an  action  by  the  payee  against  the  acceptor  of  a  bill  of 
exchange,  a  witness  called  to  prove  the  handwriting  of  the  defend- 
1  Wylde  v.  Porter,  1  Ad.  &  El.  742. 


HANDWRITING  —  COMPARISON.  311 

ant  upon  the  bill  of  exchange,  upon  which  both  the  Christian  and 
surname  was  written  bj  the  acceptor,  stated  that  he  had  seen  the 
defendant  write  once  before,  when  he  executed  a  bail  bond,  and  that 
he  had  since  compared  the  handwriting  upon  the  bill  with  that  upon 
the  bail  bond,  and  believed  the  former  to  have  been  also  written  by  the 
defendant;  he  also  stated,  that  from  having  seen  the  defendant 
execute  the  bail  bond,  he  believed  the  acceptance  was  in  his  hand- 
writing ;  but  that  when  the  defendant  signed  the  bail  bond,  he  did 
not  write  his  name  at  length,  but  only  "  M.  Ford."  Lord  ELLEN- 
BOKOUGH  said :  "  That  if  the  witness  had  seen  the  defendant  write 
his  name  at  full  length,  it  might  have  been  sufficient,  if  from  the 
exemplar  lodged  in  his  mind,  he  could  have  sworn  to  a  belief  that 
the  handwriting  was  the  same  ;  but  that  the  evidence  given  was  in- 
sufficient, since  the  witness  had  never  seen  the  defendant  write  his 
Christian  name,  and  that  it  was  necessary  to  prove  the  Christian  name 
as  well  as  the  surname  to  be  in  the  defendant's  handwriting,  and 
that  the  one  was  not  to  be  inferred  from  the  other,  any  more  than 
the  rest  of  the  name  itself  could  be  inferred  from  proof  that  one  or 
two  letters  were  in  his  handwriting."1* 

Signature  —  identity  —  bill  of  exchange. 

§  447.  An  action  was  brought  by  the  indorsee  against  the  acceptor 
of  two  bills  of  exchange.  Defendant  paid  the  money  into  court  on 
the  first  bill,  and  as  to  the  second,  he  pleaded  that  he  did  not  accept 
it,  and  it  became  essential  to  identify  his  handwriting.  Plaintiff 
accepted  the  money  paid  into  court  on  the  first  bill,  and  joined  issue 
on  the  plea  as  to  the  second.  Defendant  at  the  trial  produced  a 
1  Powell  v.  Ford,  2  Stark.  164. 

*In  Clarke  v.  Courtney,  5  Pet.  344,  involving  a  lease,  the  court  said:  "In  the  ordinary  course 
of  legal  proceedings,  instruments  under  seal,  purporting  to  be  executed  in  the  presence  of  a 
witness,  must  be  proved  by  the  testimony  of  the  subscribing  witness,  or  his  absence  sufficiently 
accounted  for.  Where  he  is  dead  or  cannot  be  found,  or  is  without  the  jurisdiction,  or  is  other- 
wise incapable  of  being  produced,  the  next  best  secondary  evidence  is  the  proof  of  his  hand- 
writing; and  that,  when  proved,  affords  prima  facie  evidence  of  a  due  execution  of  the  instru- 
ment; for  it  is  presumed  that  he  would  not  have  subscribed  his  name  to  a  false  attestation.  If 
upon  due  search  and  inquiry  no  one  can  be  found  who  can  prove  his  handwriting,  there  is  no 
doubt  that  resort  may  be  had  to  proof  of  the  handwriting  of  the  party  who  executed  the  instru- 
ment; indeed  such  proof  may  always  be  produced  as  corroborative  evidence  of  its  due  and  valid 
execution;  though  it  is  not,  except  under  the  limitations  above  suggested,  primary  evidence. 
Whatever  may  have  been  the  origin  of  this  rule,  and  in  whatever  reasons  it  may  have  been 
founded,  it  has  been  too  long  established  to  be  disregarded,  or  to  justify  an  inquiry  into  its 
original  correctness.  The  rule  was  not  complied  with  in  the  case  at  bar.  The  original  instru- 
ment was  not  produced  at  the  trial,  nor  the  subscribing  witnesses;  and  then:  non-production  was 
not  accounted  for.  The  instrument  purports  to  be  an  ancient  one;  but  no  evidence  was  offered 
in  this  stage  of  the  cause,  to  connect  it  with  possession  under  it,  so  as  to  justify  its  admission  as 
an  ancient  deed,  without  further  proof." 


312  THE  LAW  OF  IDENTIFICATION. 

witness,  who  testified  that  he  was  acquainted  with  his  handwriting 
and  believed  that  the  acceptance  was  not  his.  Plaintiff's  counsel  then 
proposed  to  lay  before  the  witnesses  a  paper  purporting  to  be  signed 
by  the  defendant,  for  examination,  and  to  ask  them,  in  turn,  whether 
they  believed  the  signature  to  be  that  of  the  defendant,  for  the  pur- 
pose of  testing  their  knowledge  of  the  handwriting,  to  the  agree- 
ment or  disagreement  of  their  testimony  on  this  point.  Defendant's 
counsel  objected  to  this  course,  and  the  lord  chief  justice  ruled  that 
the  paper  could  not  be  shown  to  the  witnesses,  unless  it  was  aliunde 
made  relevant  and  evidence  in  the  cause,  or  unless  it  was  proved  by 
independent  evidence  to  have  been  written  by  the  defendant.1  And 
as  to  the  necessity  of  calling  a  subscribing  witness  to  prove  a  signa- 
ture, it  was  held  in  England,  that  where  it  becomes  necessary  to 
introduce  secondary  evidence  there  are  no  degrees  in  it.  But  where  a 
party  is  entitled  to  give  secondary  evidence  at  all,  he  may  give  any 
species  of  secondary  evidence  which  he  may  have  within  his  power.2 
This  rule  which  the  courts  adhere  to  with  such  commendable 
tenacity,  viz. :  when  the  party  who  executed  the  instrument  is  dead, 
and  the  subscribing  witness  is  dead  or  cannot  be  found,  the  next  best 
and  secondary  evidence  ia  to  prove  the  handwriting  of  the  subscrib- 
ing witness.  The  rule  is  wrong ;  it  is  without  reason  ;  it  is  followed 
because  it  is  a  precedent,  and  the  Supreme  Court  of  the  United  States 
said  in  1830 :  "  Whatever  may  have  been  the  origin  of  this  rule, 
and  in  whatever  reason  it  may  have  been  founded,  it  has  been  too 
long  established  to  be  disregarded,  or  to  justify  an  inquiry  into  its 
original  correctness."3  What  a  fatal  concession !  It  infringes  one  of 
the  most  important  rules  of  evidence,  that  the  matter  must  be  rele- 
vant ;  that  it  must  tend  to  prove  something  that  is  in  issue.  The 
handwriting  of  the  subscribing  witness  is  not  in  issue.  And  when 
you  have  proved  it,  you  have  proved  a  mere  attestation,  which  is 
not  in  issue.  Why  not  make  direct  proof  of  the  handwriting  of  the 
party  who  executed  the  instrument  ? 

Alias  —  middle  name  —  addition  to  name. 

§  448.  A  party  was  indicted  in  England  by  the  name  of  Elizabeth 
Newman,  alias  Judith  Hancock,  for  keeping  a  bawdy  house.  There 
was  a  motion  to  quash,  because  a  woman  could  not  have  two  Christian 
names,  and  for  this  reason  the  indictment  was  quashed.4  It  is  held 

1  Griffitsv.  Ivery,  11  Ad.  &  El.  322.  8  Clarke  v.  Courtney,  5  Pet.  344. 

9  Doe  v.  Ross,  7  Mees.  &  Wels.  102.  4  Rex  v.  Newman,  1  Ld.  Raym.  562. 


HANDWRITING  —  COMPARISON.  313 

that  a  middle  name  is  not  necessarily  a  part  of  the  name  of  a  party 
to  a  suit.  And  where  a  party  to  a  writ  of  error  was  described  in  the 
record  below  as  "  Anderson  Bletch,"  and  in  the  writ  of  error  as 
"Andrew  J.  Bletch,"  it  will  be  presumed  they  were  the  same  per- 
son, the  contrary  not  being  shown.1  A  private  in  a  militia  company 
was  enrolled  as  John  Fletcher,  and  appeared  and  answered  to  that 
name.  In  a  suit  against  his  guardian  (he  being  a  minor)  for  the 
penalty  incurred  by  his  not  being  duly  equipped,  it  was  held  to  be 
no  objection  that  his  real  name  was  John  A.  Fletcher.2  In  an  ac- 
tion of  covenant,  the  declaration  described  the  defendant  as  Samuel 
P.  Lord,  Junior,  otherwise  called  "  Samuel  P.  Lord,  Junior  and  Jo- 
siah  Barber,"  and  stated  that  the  defendant  executed  the  covenant 
by  that  name.  The  defendant  pleaded  in  abatement,  and  asked 
that  the  bill  might  be  quashed,  because  he  is  known  only  by  the 
name  of  Samuel  P.  Lord,  Junior,  and  never  called  as  above.  To 
this  the  plaintiff  interposed  a  general  demurrer,  which  the  court 
sustained.3 

Middle  letter  —  immaterial  variance. 

§  449.  A  party  was  indicted  in  Illinois  for  robbery,  and  on  the 
trial  the  court  instructed  the  jury,  among  many  other  things,  that 
"  It  is  essential,  in  all  criminal  prosecutions,  that  the  name  of  the 
party  injured  should  be  proved  as  charged  in  the  indictment,  and  if 
the  proof  shows  that  the  robbery  was  committed  on  Isaac  B.  Ran- 
dolph and  not  on  Isaac  R.  Randolph,  as  charged  in  the  indictment,  they 
must  acquit  the  defendants."  It  was  held  that  if  the  proof  were  as 
charged  it  was  immaterial.4  And  in  a  civil  action  brought  in  Illi- 
nois, the  plaintiff's  declaration  set  out  only  the  substance  of  an  in- 
dorsement. It  was  held  that  there  was  no  material  variance,  if  the 
declarations  call  the  indorsee  by  the  name  of  R.  Solon  Craig  and  the 
indorsement  calls  him  R.  S.  Craig.5 

Middle  letters  omitted  in  name  —  transposed. 

§  450.  We  have  seen  that  the  law  recognizes  but  one  Christian 
name  though  a  person  may  have  many,  and  hence  if  there  be  two 
or  three  middle  letters  the  omission  of  one  or  all  of  them  will  not  be 
fatal ;  and,  therefore,  where  in  an  order  of  the  court  issued,  the  omis- 
sion of  the  middle  letters  "  V.  S."  in  the  name  of  one  of  the  plain- 

1  Bletch  v.  Johnson,  40  Dl.  116.  4  Miller  v.  People,  39  Dl.  457. 

»  Wood  v.  Fletcher,  3  N.  H.  61.  5  Speer  v.  Craig,  22  111.  433. 

3  Reid  v.  Lord,  4  Johns.  118. 

40 


314:  THE  LAW  OF  IDENTIFICATION. 

tiffs  in  the  title  to  such  an  order  was  not  such  a  Disentitling  as 
would  render  it  null.*  Where  there  was  an  action  on  a  promissory 
note,  and  the  defendant  suffered  a  judgment  to  go  by  default  and 
then  appealed,  the  error  assigned  was,  that  the  note  sued  on  was 
executed  and  signed  D.  S.  McKay  and  N.  J.  Johnson,  and  that  the 
judgment  as  entered  was  against  D.  L.  McKay  and  N.  J.  Johnson. 
This  difference  in  the  middle  letter  was  held  to  be  immaterial.2 

Where  a  defendant  was  indicted  for  a  misdemeanor  by  the  name 
of  James  E.  L.  H.  Manning,  he  pleaded  in  abatement  that  such 
was  not  his  name ;  that  his  name  was  James  E.  H.  L.  Manning. 
The  State  demurred  to  the  plea,  which  was  overruled  and  the  in- 
dictment quashed.  But  this  was  reversed  by  the  Supreme  Court.3* 

Handwriting  —  bill  of  exchange  —  acceptance. 

§  451.  In  an  English  case,  the  action  was  brought  against  one  Henry 
Thomas  Ryde,  as  acceptor  of  a  bill  of  exchange.  It  appeared  that  a 
Henry  Thomas  Hyde  had  kept  cash  at  the  bank  where  the  bill  was 
made  payable,  and  had  drawn  checks  on  the  bank,  and  the  cashier 
had  paid  them.  The  cashier  knew  the  party's  handwriting  by  these 
checks,  and  testified  that  the  acceptance  on  the  bill  of  exchange  was 
in  the  same  handwriting ;  but  it  had  been  some  time  since  he  had 
paid  the  checks ;  he  did  not  know  the  party  personally,  and  could 
not,  therefore,  further  identify  him  with  the  defendant.  The  Su- 
preme Court,  when  the  case  went  up,  held  that  this  evidence  was 
sufficient  to  make  a  prima  facie  case.4f  In  another  action,  brought 

1  Roosevelt  v.  Gardinier,  2  Cow.  463.  8  Roden  v.  Ryde,  4  Ad.  &  Ell.  (N.  S.) 

2  McKay  v.  Speak,  8  Tex.  376.  626;  3  G.  &  D.  604. 

3  State  v.  Manning,  14  Tex.  402. 

•In  Isaacs  v.  Wiley,  12  Vt.  674  (1839),  REDFIELD,  J.,  said:  "  It  is  objected  that  in  the  record  of 
the  committee's  advertisements,  the  name  of  Luther  W.  Brown  appears,  whereas  Luther  H. 
Brown  was  appointed  to  that  office,  and  the  court  cannot  know,  from  the  record,  that  the  same 
person  acted,  who  was  appointed.  I  do  not  find  any  case  in  which  it  has  been  decided  that  the 
middle  letter  is  any  necessary  and  essential  part  of  the  name.  If  one  have  two  Christian  names 
and  be  sued  by  the  last  one  only,  it  was  held  bad.  Arbouin  v.  Willoughby,  4  Eng.  C.  L.  348;  1 
Marsh.  477.  In  this  case  the  defendant's  name  was  Hans  William  Willoughby,  and  he  was  sued 
by  the  name  of  William  only.  A  similar  doctrine  is  held  in  Com.  v.  Perkins,  1  Pick.  388. 
But  in  the  English  courts,  as  far  as  I  have  been  able  to  learn  (and  I  know  it  to  be  so  in  the  courts 
of  justice  In  the  Canadian  provinces),  the  middle  letter  of  the  name  is  never  permitted  to  be  put 
upon  the  record.  The  names,  be  there  ever  so  many,  are  written  out  at  length."  Citing  Rey- 
nolds v.  Hankin,  4  Darn.  &  Aid.  536;  Parker  v.  Bent,  10  Eng.  Com.  Law,  75;  Franklin  v.  Tal- 
madge,  5  Johns.  84;  Roosevelt  v.  Gardinier,  2  Cow.  403.  Since  the  date  of  the  above  decision, 
this  M^MIS  to  have  become  the  general  rule,  both  in  this  country  and  in  England,  and  applies 
now  aa  well  to  corporations  as  to  individuals.  See  Peake  v.  Wabash  R.  R.  Co.,  18  111.  88;  Chad- 
•ey  v.  McCreery,  27  id.  253;  Jowett  v.  Charnock.  0  M.  &  S.  45. 

t  In  Whltelocke  v.  Musgrove,  supra,  BAYLKT,  J.,  said:  "There  was  a'case  of  Whitelocke  v. 
Musgrove  which  was  argued  before  us  In  the  course  of  this  term .  It  was  an  action  upon  a  prom- 
toory  note;  and  the  only  question  was,  whether  upon  the  death  of  the  subscribing  witness,  or 


HANDWRITING  —  COMPARISON.  315 

on  a  bill  of  exchange,  which  was  directed  to  Charles  Bonner 
Crawford,  East  India  House,  and  "  accepted,  C.  B.  Crawford,"  it 
was  testified  by  one  witness  that  the  acceptance  was  in  the  hand- 
writing of  C.  B.  Crawford,  and  that  he  was  formerly  in  the  East 
India  House ;  but  the  witness  could  not  tell  whether  or  not  that 
same  person  was  the  defendant  in  the  action.  It  was  held  that  the 
evidence  was  sufficient  without  the  proof  of  identity.1* 

1  Greenshields  v.  Crawford,  9  M.  &  W.  314. 

his  residence  abroad,  out  of  the  jurisdiction  of  the  court,  being  proved,  evidence  of  the  hand- 
writing of  such  subscribing  witness  merely  is  sufficient  proof  of  the  note  as  against  the  defend- 
ant. The  only  evidence  in  the  case  was  that  of  one  John  Uardie;  and  he  stated  that  the  sub- 
scribing witness  was  gone  to  reside  in  America;  and  he  proved  the  handwriting  of  the  subscrib- 
ing witness  to  the  note.  He  knew  nothing  at  all  about  the  defendant,  or  about  his  circumstances, 
or  even  where  he  lived.  Now,  the  note  was  dated  at  Reeth,  and  purported  to  be  signed  by  two 
persons  of  the  name  of  Musgrove,  both  of  whom  were  marksmen.  The  residence  of  the  defend- 
ant was  not  proved,  for  the  witness  said,  whether  he  lived  at  Reeth,  or  whether  he  had  connec- 
tions there,  he  did  not  know.  There  was  a  perfect  blank  in  the  evidence  as  to  any  proof  to 
identify  the  defendant  with  the  party  signing  the  note  ;  and  the  question,  therefore,  is  whether 
the  naked  evidence  of  the  handwriting  of  the  subscribing  witness  is  sufficient  to  fix  the  defend- 
ant in  such  case  ?  There  are  many  cases  in  which  the  instrument  gives  some  description,  as  by 
stating  the  residence  of  the  party,  so  as  to  give  some  ground  for  presuming  that  the  party 
proved  to  reside  in  the  same  place  is  the  party  who  has  signed  the  note ;  and  in  many  instances 
you  have  the  handwriting  of  the  party,  by  which  he  may  be  identified  as  the  party  having 
signed;  but  here  the  case  for  the  plaintiff  rests  on  the  mere  proof  of  the  handwriting  of  the  sub- 
scribing witness.  Now,  what  is  the  effect  which,  with  this  degree  of  latitude,  can  be  given  to  the 
attestation  of  the  subscribing  witness?  It  is  that  the  facts  which  he  has  attested  are  true.  Sup- 
pose an  attestation  of  an  instrument  which  describes  the  person  executing  it  as  A.  B.  of  C.,  in 
the  county  of  York.  Then  the  utmost  effect  you  can  give  to  the  attestation  is,  to  consider 
it  as  established  that  the  defendant  A.  B.  of  C.,  in  the  county  of  York,  executed  the  instru- 
ment. But  you  must  go  a  step  further,  and  show  that  the  defendant  is  A.  B.  of  O.,  in  the 
county  of  York,  or  in  some  manner  establish  that  he  is  the  (person  by  whom  the  note  ap- 
pears to  be  executed.  Now,  what  does  the  subscribing  witness  in. this  case  attest?  Why,  that 
the  instrument  was  duly  executed  by  a  person  of  the  name  of  Francis  Musgrove.  There  may  be 
many  persons  of  that  name;  if  you  do  not  show  that  the  defendant  was  the  Francis  Musgrove 
who  has  so  executed  the  instrument,  you  fail  in  making  out  an  essential  part  of  what  you  are 
bound  to  prove.  It  is  not  sufficient  for  the  subscribing  witness  merely  to  prove  that  he  saw  the 
instrument  executed.  Suppose  that  a  subscribing  witness,  when  called  into  the  box,  were  to 
say  merely  I  saw  the  note  executed ;  will  that  suffice?  He  would  be  asked,  by  whom  did  you 
see  it  executed?  If  he  were  to  say,  I  saw  it  executed  by  a  person  who  was  called  into  the  room, 
but  I  do  not  know  whether  that  person  was  the  defendant,  the  plaintiff  would  be  nonsuited. 
Why?  Because  it  is  an  essential  part  of  the  issue  which  you  are  bound  to  prove — that  the  instru- 
ment was  executed  by  the  defendant  in  the  suit.  It  seems  to  me,  therefore,  on  principle,  that 
you  must  give  evidence  of  the  identity  of  the  defendant  with  the  party  who  has  signed  the 
instrument." 

*  In  Roden  v.  Ryde,  4  Adol.  &  El.  (N.  8.)  626,  Lord  DKNMAN,  C.  J.,  said:  "  The  doubt  raised 
here  has  arisen  out  of  the  case  of  Whitelocke  1.  Musgrove,  1C.  &  M.  516.  But  there  the  circum- 
stances were  different ;  the  party  to  be  fixed  with  liability  was  a  marksman,  and  the  facts  of 
the  case  made  some  explanation  necessary.  But  where  a  person,  in  the  course  of  the  ordinary 
transactions  of  life,  has  signed  his  name  to  such  an  instrument  as  this,  I  do  not  think  there  is  an 
instance  in  which  evidence  of  identity  has  been  required,  except  Jones  v.  Jones,  9  M.  &  W.  75. 
There  the  name  was  proved  to  be  very  common  in  the  country.  I  do  not  say  that  evidence  of 
this  kind  may  not  be  rendered  necessary  by  particular  circumstances,  as  for  instance,  length  of 
time  since  the  name  was  signed.  But  in  cases  where  no  particular  circumstances  tend  to  raise 
a  question  as  to  the  party  being  the  same  name,  even  identity  of  name  is  something  from  which 
an  inference  may  be  drawn.  If  the  name  were  merely  John  Smith,  which  is  a  very  frequent 
occurrence,  there  might  not  be  much  ground  for  drawing  the  conclusion.  But  Henry  Thomas 
Rydes  are  not  quite  so  numerous;  and  from  that,  and  from  the  circumstances  generally,  there  is 


316  THE  LAW  OP  IDENTIFICATION. 

Same  —  suit  on  note  —  identity  of  maker. 

§  452.  In  an  English  case,  where  an  action  was  brought  on  a 
promissory  note  for  £50,  defendant  denied  the  execution  of  the 
note ;  there  was  an  attesting  witness  to  it,  who  testified  that  he  saw 
the  signature  (Hugh  Jones)  on  the  note  written  by  a  party  whose 
occupation  and  residence  he  described ,  but  that  he  had  no  com- 
munication with  him  since,  and  that  this  was  a  common  name  in 
the  neighborhood  where  the  note  was  made.  It  was  held  that  there 
was  no  evidence  to  go  to  the  jury  of  the  identity  of  the  defendant 
with  the  maker  of  the  note.  So,  it  does  not  follow  that,  because  a 
note  was  signed  by  J.,  a  particular  J.  who  is  sued  is  the  same  per- 
son who  signed  the  note.1  As  to  the  question  of  the  defendant  in 
an  action,  Lord  ABINGER,  C.  B.,  said  :  "  There  is  ample  evidence 
on  which  the  jury  could  have  found  that  point  against  the  defend- 
ant. The  name,  residence  and  profession  were  the  same,  and  the 
party  defending  the  action  must  have  known  that  his  identity  would 
be  disputed,  and  yet  he  called  no  witness  to  show  that  he  was 
not  the  party  who  was  alleged  to  have  married  the  female  plaintiff.2 
1  Jones  v.  Jones,  9  M.  &  W.  75.  2  Russell  v.  Smyth,  9  M.  &  W.  818. 

every  reason  to  believe  that  the  acceptor  and  the  defendant  are  identical.  The  doctrine  of  HOL- 
LAND, B.,  Whitelock  v.  Musgrave,  3Tyrwh.  558,  has  been  already  answered .  Lord  LYNDHURST, 
C.  B.,  asked  why  the  onus  of  proving  a  negative  In  these  cases  should  be  thrown  upon  the  de- 
fendant ?  The  answer  is,  because  the  proof  is  so  easy.  He  might  come  into  court  and  have  the 
witnesses  state  whether  he  was  the  man.  The  supposition  that  the  right  man  has  been  sued  is 
reasonable,  on  account  of  the  danger  a  party  would  incur  if  he  served  process  on  the  wrong 
man  ;  for,  if  he  did  so  willfully,  the  courts  would  no  doubt  exercise  their  jurisdiction  of  punish- 
ing for  contempt.  But  the  fraud  is  one  which,  in  the  majority  of  cases,  it  would  not  occur  to 
any  one  to  commit.  The  practice,  as  to  proof,  which  has  constantly  prevailed  in  cases  of  this 
kind,  shows  how  unlikely  it  is  that  such  fraud  should  occur.  The  doubt  now  suggested  has 
never  been  raised  before  the  late  cases  which  have  been  referred  to.  The  observations  of  Lord 
ABINGER  and  ALDERSON,  B.,  in  Greenshields  v.  Crawford,  9  M.  &  W.  314,  apply  to  this  case.  The 
transactions  of  the  world  could  not  go  on  if  such  objections  were  to  prevail.  It  is  important 
that  the  doubt  should  ever  have  been  raised ;  and  it  is  best  that  we  should  sweep  it  away  as  soon 
as  we  can." 

Pursuing  this  decision  a  little  further  in  the  opinions  delivered  seriatim,  PATTERSON,  J.,  said: 
"  I  concur  in  all  that  has  been  said  by  my  lord.  And  the  rule  always  laid  down  in  the  books  of 
evidence  agrees  with  our  present  decision.  The  execution  of  deeds  has  always  been  proved  by 
mere  evidence  of  subscribing  witness'  handwriting,  if  he  was  dead.  The  party  executing  an 
instrument  may  have  changed  his  residence.  Must  a  plaintiff  show  where  he  lived  at  the  time 
of  the  execution,  and  then  trace  him  through  every  change  of  habitation  till  he  is  served  with 
the  writ?  No  such  necessity  can  be  Imposed."  WILLIAMS,  J.,  said:  "  I  am  of  the  same  opin- 
ion. It  cannot  be  said  here  that  there  was  not  some  evidence  of  identity.  A  man  of  defendant's 
name  had  kept  money  at  the  branch  bank ;  and  this  acceptance  is  proved  to  be  his  writing. 
Then  is  that  man  the  defendant?  That  it  is  a  person  of  the  same  name  is  some  evidence,  till 
another  party  is  pointed  out,  who  might  have  been  the  acceptor.  In  Jones  v.  Jones,  9  M.  &  W. 
75,  the  same  proof  was  relied  upon,  and  Lord  ABINCIKR  snid:  ''The  argument  for  the  plaintiff 
might  be  correct,  If  the  case  had  not  introduced  the  existence  of  many  Hugh  Joneses  in  the 
neighborhood  where  the  note  was  made."  It  appeared  that  the  name  Hugh  Jones,  in  that  par- 
ticular part  of  Wales,  was  so  common  as  hardly  to  be  a  name  ;  so  that  a  doubt  was  raised  on 
the  evidence  by  cross-examination.  That  is  not  the  case  here,  and,  therefore,  the  conclusion 
must  be  different. 


HANDWKITING  —  COMPABISON.  317 

Same  —  writing  —  subscribing  witness  —  rule  in  England. 

§  453.  A  very  well-considered  case  in  England,  involving  the  iden- 
tity of  a  subscribing  witness  to  a  written  instrument,  about  which 
there  has  been,  and  still  is,  a  diversity  of  opinion,  was  an  action 
brought  upon  a  written  instrument,  the  subscribing  witness  to  which 
was  dead  or  resided  abroad.  It  was  held  to  be  necessary,  besides 
proving  the  handwriting  of  the  subscribing  witness,  to  give  some 
evidence  of  the  identity  of  the  party  sued  with  the  party  who  ap- 
pears to  have  executed  the  instrument.1 

Signature  on  receipts  —  proof  of —  insufficient. 

§  454.  In  an  action  in  New  York  for  work  and  labor,  when  plain- 
tiff closed  his  testimony,  defendant  offered  in  evidence  two  receipts, 
to  which  the  name  of  plaintiff  was  subscribed,  and  called  Campbell, 
a  witness,  to  prove  them ;  witness  being  asked,  said  he  had  never 
seen  the  plaintiff  write,  but  had  had  dealings  with  him,  and  had  re- 
ceived promissory  notes  from  him,  which  he  had  paid,  except  one ; 
that,  on  looking  at  the  receipt,  he  was  inclined  to  think  that  the  sig- 
nature was  in  the  handwriting  of  plaintiff ;  but  that  this  opinion 
was  founded  upon  the  circumstances  he  had  stated,  not  having  seen 
plaintiff  write ;  could  not  positively  say  that  he  had  ever  seen  him 
write.  The  court,  while  holding  this  evidence  to  be  insufficient,  said  : 
"  The  attorney  did  not  push  the  question  far  enough."2 

Attesting  witness  —  proving  his  own  signature. 

§  455.  Another  mode  of  acquiring  knowledge  of  a  person's  hand- 
writing, so  as  to  identify  it,  is  by  having  received  letters  or  other 
documents  from  such  person,  and  subsequently  having  personal  cor- 
respondence with  the  person  in  relation  to  the  subject-matter  of  them, 
or  acting  upon  them  in  a  manner  that  was  conclusive  proof  of  their 
genuineness.  In  an  action  of  ejectment  in  England,  in  which  a  will 
became  important  evidence,  it  was  produced,  and  on  one  day  of  the 
trial  (which  lasted  several  days),  defendant  called  an  attesting  wit- 
ness to  the  will,  who  testified  that  the  attestation  was  his ;  he  was 
cross-examined  and  two  signatures  to  depositions  respecting  the 
same  will,  and  several  other  signatures  were  shown  him  (none  of 
which  were  in  evidence  in  the  cause),  and  he  said  he  believed  they 
were  his.  On  the  next  day  plaintiff  offered  a  witness  to  prove  that 
the  attestation  was  not  genuine.  This  witness  was  an  inspector  at 

1  Whitelocke  v.  Musgrove,  1  Cromp.  &  2  Johnson  v.  Daverne,  19  Johns.  134. 
Mees.  511. 


318  THE  LAW  OF  IDENTIFICATION. 

the  Bank  of  England,  and  had  no  knowledge  of  the  handwriting  of 
the  attesting  witness,  except  from  having,  before  the  trial,  and  again 
during  it,  examined  the  signature  admitted  by  the  attesting  witness, 
which  admission  he  had  made  in  court.  Upon  examination  the  state- 
ment was  received  in  evidence.1 

Means  of  knowing  handwriting. 

§  456.  The  general  rule  is,  as  we  have  seen,  that  handwriting  may 
be  proved  by  any  witness  who  has  previously  acquired  a  general 
knowledge  of  the  handwriting  of  the  party  whose  signature  is  in 
doubt,  dispute  or  question,  from  having  seen  him  write,  from  hav- 
ing carried  on  correspondence  with  him.  or  from  an  acquaintance 
gained  from  having  seen  handwriting  acknowledged  by  him  or  proved 
to  be  his.  These  are  some  of  the  means  of  acquiring  a  knowledge 
necessary  to  render  a  witness  competent  to  testify  in  such  cases. 
But  where  a  witness  testified  in  relation  to  the  genuineness  of  a 
signature,  and  on  examination  a  slip  of  paper  was  handed  to  him 
with  the  name  of  the  person  written  three  times  on  it,  and  he  was 
asked  to  say  whether  the  writing  was  the  same,  or  by  different  per- 
sons, and  he  answered  that  they  were  all  the  same ;  and  another  wit- 
ness testified  that  they  were  written  by  different  hands,  it  was  held 
that,  although  the  judge  might  have  rejected  the  testimony,  yet  its 
admission  was  not  grounds  for  granting  a  new  trial.2  * 

Handwriting  —  imitation  —  spelling  detected. 

§  457.  The  imitation  of  handwriting  is  sometimes  so  very  success- 
ful that  it  may  deceive  the  very  man  whose  name  appears  on  the 
paper  that  is  forged  or  counterfeited,  and  he  be  unable  to  identify  it 

1  Doe  v.  Suckermore,  5  Ad.  &  El.  731.        *  Page  v.  Homans,  14  Me.  478. 

*  In  Hopkins  v.jMegquire,  35  Me.  78,  APPLBTON,  J.,  said:  "The  plaintiff  claims  to  recover  as 
indorsee  of  a  note,  signed  by  the  defendant,  payable  to  Pierce  &  Pool,  or  order,  and  by  them  in- 
dorsed. To  prove  the  indorsement  of  the  note,  he  called  a  witness,  who,  on  his  direct  examlna- 
ion,  testified  that  he  had  seen  Pool  write  five  or  six  times,  and  that.it  was  hisstrong  impression 
that  the  indorsement  was  In  his  handwriting;  that  it  looked  like  it;  and  being  cross-examined, 
he  said  that  the  writing  on  the  back  of  the  note  resembled  Pool's,  but  that  he  could  not  swear 
to  the  indorsement,  nor  to  his  writing.  *  *  *  The  strength  of  his  belief  will  depend  on  the 
greater  or  less  similarity.  He  can  only  testify  to  his  own  state  of  mind  on  the  question.  The 
language  used  as  indicative  of  the  strength  of  his  belief  was  properly  before  the  jury  for  their 
consideration,  and  it  was  for  them  to  determine  its  sufficiency  to  establish  the  fact  which  it  was 
offered  to  prove.  When  the  witness  stated  that  he  could  not  swear  to  the  handwriting,  nor  to 
the  indorsement,  he  was  probably  understood  by  the  Jury  as  referring  to  his  own  knowledge, 
and  not  as  intending  thereby  to  limit  or  restrain  the  testimony  previously  given,  and  it  is  not 
for  us  to  say  that  they  misunderstood  him."  The  judgment  was  for  plaintiff,  and  was  af- 
firmed. In  the  matter  of  proving  the  identity  of  handwriting,  forgeries  and  counterfeits  are 
often  so  near  &  facsimile,  that  men  are  cautious  in  testifying  postlvely  to  a  signature,  nor  does 
any  rule  of  evidence  require  it.  The  witness  must  be  competent,  by  having  acquired  sufficient 
knowledge  of  the  person's  handwriting;  then  his  belief  or  opinion  is  all  that  Is  required  of  him. 


HANDWRITING  —  COMPARISON.  319 

as  a  forgery.  A  case  is  reported  in  Scotland,  in  which  one  Careswell 
was  indicted  for  forgery  or  counterfeiting  bank  notes.  A  clerk  of 
the  bank  was  called  as  a  witness,  whose  name  was  on  the  note.  He 
swore  positively  to  the  handwriting  as  his  own ;  and  when  his  genuine 
signature  was  presented  to  him,  he  hesitated,  before  he  would  iden- 
tify it.1  Mr.  Wills  gives  the  case  of  a  tailor,  by  the  name  of  Alex- 
ander, who,  having  learned  that  a  person  of  his  name  had  died,  leav- 
ing considerable  property,  and  without  any  heirs  apparent  being  iji 
existence,  obtained  access  to  the  garret  in  the  family  mansion,  where 
he  found  a  collection  of  old  letters  about  the  family.  He  carried 
them  off,  and  by  their  aid  simulated  a  mass  of  productions,  which  it 
was  said  clearly  proved  his  connection  with  the  family,  and  the  lord 
ordinary  decided  the  cause  in  his  favor.  The  case,  however,  was 
carried  to  the  Inner  House.  When  it  came  into  court,  certain  cir- 
cumstances led  Lord  MEADOWBANK,  then  a  young  man  at  the  bar,  to 
doubt  the  authenticity  of  the  documents.  One  circumstance  was, 
"  that  there  were  a  number  of  words  in  the  letters  purporting  to  be 
from  different  individuals,  spelt,  or  rather  misspelt  in  the  same  way, 
and  some  of  them  so  peculiar,  that,  on  examining  them  minutely, 
there  was  no  doubt  that  they  were  all  written  by  the  same  hand. 
The  case  attracted  the  attention  of  the  Inner  House.  The  party  was 
brought  to  the  clerk's  table  and  was  there  examined  in  the  presence 
of  the  court.  He  was  desired  to  write  a  dictation  of  the  lord  chief 
clerk,  and  he  misspelled  all  the  words  that  were  misspelled  in  the  let- 
ters, and  in  precisely  the  same  way,  and  this  and  other  circum- 
stances proved  that  he  had  fabricated  all  of  the  documents  himself. 
He  then  confessed  the  truth  of  his  having  written  the  letters  on  old 
paper,  which  he  had  found  in  the  garret ;  and  this  result  was  arrived 
at  in  the  teeth  of  the  testimony  of  half  a  dozen  engravers,  all  saying 
that  they  thought  the  letters  were  written  by  different  hands.2 

Comparison  of  signatures  —  American  rule. 

§  458.  Some  of  the  late  decisions  seem  to  indicate  that,  contrary 
to  the  former  ruling,  the  knowledge  of  a  witness  may  be  tested  on 
cross-examination  by  placing  other  writings  in  his  hands,  which  are 
not  in  the  case  for  any  other  purpose,  and  which  are  not  admissible 
in  evidence  for  any  other  purpose,  and  asking  him  to  say  whether  it 
and  the  writing  in  question  were  written  by  the  same  person,  and 

1  Rex  v.  Carsewell,  Burnett's  Cr.  L.        8  Wills  Cir.  Ev.  139. 
Scotland,  502. 


320  THE  LAW  OF  IPBNTIFICATION. 

that  such  papers  may  be  given  to  the  jury  for  comparison.1  But 
the  former  rule  has  been  followed  in  the  United  States  by  a  long  series 
of  decisions,  i.  e.,  following  the  English  rule,  and  refusing  to  adopt 
the  more  liberal  rule  of  comparison  so  long  practiced  under  the  en- 
lightened system  of  Roman  jurisprudence ;  but  have  excluded  evi- 
dence of  the  genuineness  of  handwriting  whenever  that  evidence 
has  been  based  upon  a  knowledge  derived  from  a  mere  comparison 
thereof.2  But  in  an  action  to  try  the  right  of  property  in  1883,  the 
court  seemed  to  foreshadow  a  different  view  of  the  subject,  and  held 
that  no  instrument  could  be  proved  by  comparison  of  handwriting, 
unless  it  is  shown  that  the  signatures  offered  for  comparison  were 
made  by  the  individual  whose  name  is  written  to  the  instrument 
sought  to  be  established  by  such  evidence.3 

Murder  —  comparison  —  letters  —  writings. 

§  459.  One  Ward,  alias  La  Vigne,  was  indicted  jointly  with  an- 
other in  Vermont,  for  murder,  and  Ward  was  convicted ;  one  ex- 
ception taken  was,  that  among  the  matters  of  evidence  introduced  by 
the  prosecution,  were  two  letters  dated  respectively  September  22 
and  30,  1865,  signed  "Jerome  La  Vigne,"  containing  evidence 
against  the  accused,  if  they  were,  in  fact,  written  by  him.  In  order 
to  prove  the  handwriting  of  the  letters,  the  prosecution  established 
by  proof  other  letters  as  a  standard  of  comparison ;  and  also  pro- 
duced a  railroad  ticket,  which  one  Appleton,  a  conductor  on  the 
Vermont  Central  railroad,  testified  he  took  from  the  accused,  La 
Vigne,  just  before  his  arrest,  which  had  written  on  it  "  Jerome  La 
Vigne,  93  River  street,  Troy,  N.  Y".,''  and  also  produced  a  ballad  (Pat 
Maloy)  which  the  officer  who  arrested  La  Vigne  testified  he  took  from 
him  at  the  time  of  his  arrest,  and  which  had  the  words  written  upon 

1  Young  v.  Honner,  2  M.  &  Rob.  537;  State  v.  Givens,  5  Ala.  747;  Williams  v. 

Griffitsv.  Ivery,  11  Ad.  &  El.  322;  Sar-  State,    61    id.    33;   Bishop  v.  State,  30 

vent  v.  Hesdra,  5  Redf.  47.  id.  34;   State  v.  Fritz,  23  La.  Ann.  55; 

'Goodyear  v.  Vosburgb,  63 Barb.  154;  Hazleton  v.  Bank,  32  Wis.  34;  Pierce 

Van  Wyck  v.  Mclntosb,  14  N.  Y.  439;  v.  Northey,  14  Wis.  9;  Herrickv.  Swom- 

Titford  v.   Knott,   2  Johns.    Cas.  210;  ley,  56  Md.  439;  Niller  v.  Johnson,  27 

Berryhill  v.  Kirchner,  96  Pa.  St.  489;  Md.    6;    Burress'   case,    27  Gratt.  940; 

Slayraaker  v.  Wilson,  1  Pa.  216;  Penn.  Rowt  v.  Kile,  1  Leigh  (Va.),  216;   Pope 

R.  Co.  v.  Hickman,  28  Pa.  St.  318;  Jones  v.  Askew,  1  Ired.  (N.  C.)  16;  State  v. 

v.  State,  60  Ind.  241;  Chance  v.  R.  Co.,  Allen,    1  Hawks  (N.    C.),   6;  Yates  v. 

82  Ind.  472;   Shorb  v.  Kinzie,  80  Ind.  Yates,  76  N^C.  143;  Howard  v.  Patrick, 

500;    Hazzard    v.   Vickery,  78   id.  64;  43  Mich.  121;  State  v.  Clinton,  67  Mo. 

Singer  Co.  v.  McFarland,  53  Iowa,  540;  380;   Woodard  v.  Spiller,  1  Dana,  179; 

Jumpertz  v.  People,  21  111.  875;  Brob-  Matlock  v.  Glover,  63  Tex.  231;  Shank 

ston  v.  Cahill,  64  id.  356;  Snyder  v.  Me-  v.  Butsch,  28  Ind.  19. 
Keever,  10  111.  App.  188;  Kernin  v.  Hill,        » Sartor  v.  Bolinger,  59  Tex.  411. 
87  111.  209;  Burdick  v.  Hunt,  43  Ind.  881; 


HANDWRITING  —  COMPARISON.  321 

it  in  pencil,  as  follows :  "  John  Ward,  canal-boat  S.  F.  Davis,  Al- 
bany to  Oswego."  All  these  papers  were  submitted  to  two  wit- 
nesses as  experts  in  the  identification  of  handwriting,  who  testified 
that,  in  their  opinion,  they  were  all  in  the  same  hand.  All  these 
papers  were  then  submitted  to  the  jury,  and  the  letters  read  to  the 
jury,  and  also  the  writings  on  the  railroad  ticket  and  the  ballad  ; 
all  against  the  objection  of  defendant.  This  was  sustained.  The 
court  laid  down  the  rule  thus  :  "In  criminal  prosecutions  where  the 
guilt  of  the  accused  is  sought  to  be  established  by  proof  afforded  by 
comparisons  of  handwriting,  although  the  courts  have  decided  that 
the  writing  offered  as  a  standard  is  genuine,  still  it  is  the  right  and 
duty  of  the  jury  to  judge  for  themselves  in  respect  to  the  sufficiency 
of  the  proof  of  the  genuineness  of  the  writing.  They  should  weigh 
the  testimony  by  the  same  rule,  and  require  the  same  measure  of 
proof  they  would  require  in  respect  to  any  other  essential  point  in 
the  case.  In  England,  it  was  long  held  that  a  comparison  of  hand- 
writing was  not  admissible ;  but  that  rule  was  modified  by  more 
recent  decisions,  under  which  their  courts  admitted  in  evidence  com- 
parison of  hands,  but  confined  it  to  documents  which  were  proved 
to  be  genuine,  and  which  were  in  evidence  on  the  trial  of  the  cause 
for  other  purposes.  The  doctrine  of  those  cases  (except  where  the 
writing  was  an  ancient  document)  was  the  law  of  England  for  a  long 
period  of  time ;  finally,  a  different,  and,  as  we  think,  more  reasona- 
ble rule  was  introduced  by  Parliament.  In  1854,  an  English  stat- 
ute, known  as  the  Common  Law  Procedure  Act,  was  passed,  which 
did  permit  it.  It  has  been  found  in  many  cases  that  the  interest  of 
truth  and  justice  required  the  introduction  and  use  of  such  testimony, 
and  when  guarded  by  proper  rules,  it  is  as  far  from  objection  as  any 
other  human  testimony  which  requires  the  exercise  of  judgment 
and  discretion  of  court  and  jury  to  determine  whether  it  is  sufficient 
to  prove  the  alleged  fault."1 

Comparison  —  writing  known  to  the  court. 

§  460.  In  an  action  of  trover  in  New  Hampshire  to  recover  corn, 
hay  and  potatoes,  the  case  involved  a  written  lease  of  certain  prem- 
ises, and  the  signature  of  one  Pike.  It  was  held  that  if  the  evidence 
relating  to  Pike's  signature  was  addressed  to  the  court,  as  it  was 
supposed  to  have  been,  in  order  to  make  the  lease  competent  to  be 
submitted  to  the  jury,  then  there  would  seem  to  be  no  occasion 
1  State  v.  Ward,  39  Vt.  225. 

41 


322  THE  LAW  OF  IDENTIFICATION. 

to  undertake  to  prove  to  the  court  something  which  was  known  to 
the  court  without  proof ;  nor  was  there  any  need  to  introduce  more 
evidence  on  the  part  of  plaintiff,  when  the  facts  within  the  knowl- 
edge of  the  court  made  aprima  facie  case  in  his  favor,  until  some 
evidence  was  introduced  in  opposition  to,  and  rebutting  the  case 
thus  made.1 

Same  —  rule  in  England. 

§  461.  "While  it  is  true  that  the  courts  of  England  did  set  them- 
selves against  the  admission  of  proof  of  handwriting,  they  did  not 
adhere  to  it  with  a  very  commendable  tenacity,  or  with  their  pro- 
verbial consistency,  but  in  one  important  case  involving  this  ques- 
tion, seem  to  have  yielded  to  a  more  liberal  view  in  1830,  when  that 
court  made  the  following  remarks  :  "  When  two  documents  are  in 
evidence,  it  is  competent  for  the  court  and  jury  to  compare  them. 
The  rule  as  to  the  comparison  of  handwriting  applies  to  witnesses 
who  can  only  compare  a  writing  to  which  they  are  examined,  with 
the  character  of  the  handwriting  impressed  upon  their  own  minds  ; 
but  that  rule  does  not  apply  to  the  court  or  jury,  who  may  compare 
the  two  documents  when  they  are  properly  in  evidence."2 

Same  —  rule  in  Alabama. 

§  462.  It  is  certainly  remarkable  how  blindly  some  of  our  courts 
follow  English  precedents.  The  court  of  Alabama  in  1841  adhered 
to  the  old  English  rule  with  a  commendable  tenacity  in  a  promissory- 
note  case.  GOLDTHWAITE,  J.,  briefly  said :  "  This  is  one  of  those 
questions  upon  which  so  much  has  been  said  and  written,  that  a  re- 
view of  all  the  cases  would  be  alike  impracticable  and  uninteresting. 
We  shall,  therefore,  content  ourselves  with  declaring  the  rule  as  we 
consider  it  to  exist  at  the  present  day.  Comparison  of  handwriting 
by  submitting  different  writings  having  no  connection  with  the  mat- 
ter in  issue,  is  not  permitted  by  law.  The  present  case  presents  the 
naked  question,  whether  signatures  proved  to  be  in  the  defendant's 
handwriting  can  be  given  in  evidence  to  the  jury  to  enable  them  to 
determine  whether  the  letter  is  genuine  or  otherwise.  In  our  opin- 
ion this  was  not  competent  evidence. 

Comparison  of  hands  —  skill  of  witness. 

§  463.  Upon  an  action  of  assumpsit  on  a  promissory  note,  it  was 

1  Brown  v.  Lincoln,  47  N.  H.  468.  8  Griffith  v.   Williams,  1  Crompt.   & 

Jer.  47. 


HANDWRITING  —  COMPARISON.  323 

said  that  when  the  signature  is  in  dispute,  the  genuine  signature 
of  the  party,  to  a  paper  not  otherwise  competent  evidence  in  the 
case,  may  be  admitted,  to  enable  the  court  and  jury,  by  a  comparison 
of  the  hands,  to  determine  the  question  of  its  genuineness,  and  the 
opinion  of  a  writing-master,  professing  to  have  skill  in  detecting 
forgeries,  formed  from  a  comparison  of  hands,  without  any  actual 
knowledge  of  the  handwriting  of  the  person  whose  signature  is  in 
controversy,  is  competent  evidence,  and  the  opinion  of  such  witness, 
formed  merely  from  an  inspection  of  the  contested  signature  in  re- 
gard to  its  being  in  a  natural  or  simulated  hand,  was  received  in 
Massachusetts  as  competent  evidence.1 

Comparison  —  experts  —  bank  officers. 

§  464.  The  fact  that  the  employments  of  a  witness  have  not  been 
such  as  to  require  him  to  distinguish  between  true  and  simulated 
handwritings,  was  held  not,  of  itself  alone,  a  sufficient  reason  for 
precluding  him  from  giving  an  opinion  as  to  the  genuineness 
of  a  doubtful  or  disputed  signature,  though  the  opinion  be  founded 
merely  upon  a  comparison  of  writings.  TENNY,  J.,  said  :  "  When 
handwriting  is  the  subject  of  controversy  in  judicial  proceedings, 
witnesses  who,  by  steady  occupation  and  habit,  have  been  skilled  in 
marking  and  distinguishing  the  characteristics  of  handwriting,  are 
allowed  to  compare  that  in  question  with  other  writings,  which  are 
admitted  or  fully  proved  to  have  come  from  the  party,  and  to  give 
opinions  formed  from  such  comparison."  *  *  *  The  definition 
of  the  word  "  expert "  in  Webster's  dictionary  is,  "  properly  expe- 
rienced, taught  by  use,  practice  and  experience ;  hence,  skillful  and 
instructed,  having  familiar  knowledge  of."  The  testimony  of  Wil- 
liam B.  Smith  and  Ignatius  Sargent,  severally,  brought  each  fully 
within  the  definition,  when  applied  to  the  term  in  reference  to  skill 
and  experience  in  judging  of  handwriting.  They  are  not  the  less 
experts  because  they  did  not  profess  to  know  the  precise  meaning 
of  the  word  '  expert ; '  or  because  they  had  not  been  in  situations 
where  their  duty  required  them  to  distinguish  between  genuine  and 
counterfeit  handwriting."2 

Where  the  officers  of  banks  are  accustomed  to  receiving  and  pay- 
ing out  the  bills  and  notes  of  another  bank,  they  in  that  way,  and 
by  that  means,  acquire  a  knowledge  of  the  signatures  of  the  presi- 

1  Moody  v.  Rowell,  17  Pick.  490.  33;    Richardson  v.  Newcomb,  21  Pick. 

s  Sweetser    v.    Lowell,   33   Me.   446.     315. 
Citing    Hammond's     case,    2    Qreenl. 


324  THE  LAW  OF  IDENTIFICATION. 

dent  and  cashier  of  such  other  bank,  and  will  be  enabled  to  identify 
their  genuine  signatures.1 

Passing  counterfeit  bank  bill  —  evidence, 

§  465.  One  Kinnison,  in  Massachusetts,  was  indicted,  in  1808,  for 
having  in  his  possession  a  counterfeit  bank  note.  It  was  held  not  to 
be  sufficient  for  the  witnesses  to  swear  to  the  identity  of  the  note, 
unless  it  had  been  constantly  in  their  possession,  or  they  had  put  a 
private  artificial  mark  upon  it  before  parting  with  it.  He  was 
charged  with  having  in  his  possession  a  false,  forged  and  counterfeit 
note  of  the  Yermont  State  Bank.  The  jury  found  him.  guilty  on  the 
testimony  of  Pecker  and  his  wife,  who  testified  positively  to  the 
identity  of  the  bill,  on  which  there  was  no  private  artificial  mark, 
but  there  were  three  accidental  ones.  Pecker  had  received  it  some 
two  weeks  previous,  during  which  time  it  remained  in  the  hands  of 
a  justice  of  the  peace.  PARSONS,  C.  J.,  laid  down  the  rule  thus  : 
"  It  is  an  indispensable  rule  of  law,  that  evidence  of  an  inferior 
nature,  which  supposes  evidence  of  a  higher  nature,  and  which  may 
be  had,  shall  not  be  admitted.  In  the  present  case,  Pecker  was  an 
unexceptional  witness  to  prove  that  the  defendant  passed  the  note 
to  him;  but  when  he  testified  that  the  bank  note  he  received  had 
been  out  of  his  possession,  and  in  the  possession  of  the  justice,  whose 
testimony  might  have  been  had,  it  was  irregular  to  admit  him  to 
testify  to  the  identity  of  the  note  produced,  from  his  recollection 
of  the  accidental  marks.  The  testimony  of  the  justice  would  have 
been  direct,  and  is  of  a  superior  nature.2 

Same  —  evidence  —  rule  in  South  Carolina. 

§  466.  One  Hooper  was  indicted  in  South  Carolina,  in  1830,  for 
counterfeiting,  in  which  case  the  court  seems  to  have  overruled  its 
former  opinion  on  the  admission  of  evidence  of  identity.  In  thie 
latter  case,  for  counterfeiting,  it  was  held  that  the  officers  of  the 
bank  in  no  case  were  the  only  competent  witnesses  to  prove  the 
counterfeit ;  and  the  case  of  Petty,  in  Harp.  59,  was  considered  and 
the  rule  denied  ;  and  the  rule  was  laid  down  thus:  "  That  where  the 
officers  of  the  bank  are  in  reach  of  the  process  of  the  court,  they 
ought  to  be  produced,  or  their  absence  accounted  for,  particularly 
where  the  forgery  is  not  so  gross  and  palpable  as  to  be  susceptible  of 
detection  by  any  one  acquainted  with  the  notes  of  the  bank  ;  but  that 

>  Com.  v.  Carey,  2  Pick.  47.  «  Com.  v.  Kinison,  4  Mass.  646. 


HANDWRITING  —  COMPARISON.  325 

a  resort  to  the  private  marks  of  the  bank  is  necessary  to  afford  a 
satisfactory  conviction  to  the  mind.  Bat  that  in  all  cases,  the  opinion 
of  any  person  familiar  with  the  notes  of  the  bank  is  admissible  in 
the  first  instance,  and  the  weight  and  volume  of  that  opinion  is  for 
the  consideration  of  the  jury."1 

Same  —  testimony  —  officers  of  the  bank. 

§  467.  A  prisoner  was  indicted  in  South  Carob'na  in  1823, 
tinder  the  act  of  1736,  for  forging  a  note  of  the  bank  of  that  State, 
and  passing  the  same  as  and  for  a  true  and  genuine  note.  He  was 
convicted,  and  the  ground  taken  on  motion  for  a  new  trial  was,  that 
a  proper  officer  of  the  bank  should  have  been  called  to  testify  to 
the  forgery.  Three  of  the  judges  were  of  opinion  that  one  of  the 
officers  who  was  conversant  with  the  handwriting  of  all  the  officers, 
and  who  knew  the  various  devices  and  private  marks  affixed  to  the 
notes  of  the  bank,  should  have  been  produced,  the  other  two  judges 
gave  no  opinion  upon  the  point.  But  the  case  went  off  upon  another 
point,  on  which  the  judges  all  agreed.2  But  this  point  as  to  the  evi- 
dence was  overruled  in  1830. 

Same  —  bill  of  exchange  —  bank  note.  • 

§  468.  In  another  case  in  the  same  State,  and  near  the  same  time, 
it  appeared  that  the  defendant  was  indicted  for  forging  a  bill  of 
exchange  or  order  purporting  to  have  been  drawn  by  the  president 
of  the  branch  of  the  Bank  of  the  United  States  at  Charleston,  on 
the  cashier  of  the  principal  bank.  The  bill  was  drawn  payable  to 
A.  G.  Rose  or  order,  and  his  indorsement  was  likewise  forged.  A 
witness  was  permitted  in  testifying  to  give  his  opinion  that  certain 
bills  were  counterfeit,  though  he  was  not  a  bank  officer,  and  had  only 
seen  a  part  of  the  persons  write  whose  names  were  to  the  bill,  he 
professing  to  be  acquainted  with  the  handwriting  of  the  others  from 
a  general  familiarity  with  the  bills  of  those  banks ;  his  testimony 
was  admitted.3  One  Martin  was  indicted  in  Virginia  in  1830,  for 
passing  a  counterfeit  note  of  $20,  was  convicted  and  sentenced  to  the 
penitentiary  for  ten  years.  The  court  said  :  "  We  think  it  may  be 
fairly  deduced  from  the  whole  evidence,  that  the  prisoner  and 
Lewallen  were  jointly  interested  and  had  confederated  in  the  passing 
of  counterfeit  notes  in  the  purchase  of  horses  during  their  expedition 
over  the  mountains.  If  so,  there  could  be  no  stronger  evidence  to 

1  State  v.  Hooper,  2  Bailey  (S.  C.),  37.        3  State  v.  Tutt,  2  Bailey  (S.  C.),  45. 

2  State  v.  Petty,  Harper  (S.  C.),  59. 


326  THE  LAW  OF  IDENTIFICATION. 

prove  that  the  note  mentioned  in  the  indictment,  which  was  of 
the  same  description,  and  was  passed  to  Smith  upon  the  same 
journey,  was  known  by  the  prisoner  to  be  counterfeit.  The  Com- 
monwealth  proved,  by  persons  well  acquainted  with  the  notes  of  the 
Bank  of  Virginia,  that  the  note  in  the  indictment  mentioned  was 
counterfeit.  The  prisoner  insisted  that  the  proof  should  be  made 
by  an  officer  of  the  bank.  We  are  of  opinion  that  the  evidence  was 
legal,  and  competent  to  be  weighed  by  the  jury,  and  that  the  ob- 
jection was  properly  overruled."1 

Larceny  —  bank  notes  —  not  produced  on  trial. 

§  469.  The  identity  of  bank  notes  became  all  important  in  the 
trial  in  Virginia  of  an  indictment  for  the  larceny  of  bank  notes 
to  the  aggregate  value  of  $30,  the  property  of  one  William 
Lauck.  He  was  convicted  and  the  notes  were  not  brought  into 
court,  but  this  was  held  to  be  immaterial.  The  court  remarked  : 
"  The  second  question  is,  whether,  in  every  prosecution  for  the  lar- 
ceny of  bank  notes,  it  is  necessary  for  the  conviction  of  the  prisoner, 
that  the  notes  should  be  produced  on  the  trial ;  conceding,  for  the 
sake  of  argument,  that,  in  prosecutions  of  this  kind,  the  jury  cannot 
convict  unless  they  are  satisfied  that  the  stolen  notes  are  genuine, 
we  yet  deny  that  the  production  of  them  is  indispensable  to  prove 
the  fact.  Indeed,  it  seems  to  be  admitted  by  the  prisoner's  counsel, 
that  if  they  are  lost  or  destroyed,  or  if  the  prisoner  prevents  the  pro- 
duction of  them,  they  need  not  be  produced.  If  the  production  of 
them  be  indispensable,  it  is  not  easy  to  perceive  how  the  loss  or  de- 
struction of  them  obviates  the  necessity.  It  is  the  province  of  the 
jury  to  judge  of  their  genuineness  by  the  evidence."2  While  this  is 
true,  it  is  also  true  that  the  best  evidence  should  be  produced,  or 
accounted  for,  and  .the  production  of  the  notes  is  certainly  the  best 
evidence  of  their  genuineness,  and  if  not  genuine,  they  have  no  value 
and  are  not  the  subject  of  larceny. 

Counterfeiting  —  evidence  —  competent  witnesses. 

§  470.  As  to  the  mode  of  proving  handwriting,  singular  rules 
have  prevailed.  In  an  indictment  for  passing  counterfeit  money  in 
North  Carolina  in  1820  —  a  bank  note  on  the  Bank  of  Augusta, 
Georgia,  signed  by  Thomas  Gumming,  president,  and  E.  Ealy,  as 
cashier  of  that  bank  —  the  court  laid  down  what  was  then  supposed 

1  Martin  v.  Com.,  2  Leigh,  746.  a  Moore  v.  Com.,  2  Leigh  (Va.),  701. 


HANDWRITING  —  COMPARISON.  327 

to  be  the  law,  thus :  "  The  only  methods  of  proving  the  handwriting 
of  a  person,  sanctioned  by  the  law,  are  :  (1)  By  a  witness  who  saw 
him  sign  the  very  paper  in  dispute.  (2)  By  one  who  has  seen  him 
write,  and  has  thereby  fixed  a  standard  in  his  own  mind,  by  which 
he  ascertains  the  genuineness  of  any  other  writing  imputed  to  him. 
(3)  By  a  witness  who  has  received  letters  from  the  supposed  writer, 
of  such  a  nature  as  renders  it  probable  that  they  were  written  by  the 
person  from  whom  they  purport  to  come.  Such  evidence  is  only 
admissible  where  there  is  good  reason  to  believe  that  the  letters  from 
which  the  witness  has  derived  his  knowledge  were  really  written  by 
the  supposed  writer  of  the  paper  in  question.  (4)  When  the  wit- 
ness has  become  acquainted  with  his  manner  of  signing  his  name  by 
inspecting  other  ancient  writings  bearing  the  same  signature,  and 
which  have  been  regarded  and  presumed  as  authentic  documents. 
This  mode  of  proof  is  confined  to  ancient  writings,  and  is  admitted 
as  being  the  best  the  nature  of  the  case  will  allow."1  It  seems  that 
the  clerk  of  a  court,  for  instance,  would  soon  become  acquainted 
with  the  signature  of  his  predecessor,  and  be  able  to  prove  it. 

Witness  —  post-office  clerk  —  detective  of  forgeries. 

§  471.  In  an  action  against  a  defendant  as  acceptor  of  a  bill  of 
exchange,  the  defendant  set  up  that  the  signature  to  the  bill  was 
not  his,  but  a  forgery.  Two  witnesses  on  the  part  of  the  plaintiff 
identified  it  as  the  signature  of  the  defendant ;  testifying  that  they 
believed  it  to  be  his.  Defendant  called  a  clerk  of  the  post-office, 
whose  business  it  was  to  inspect  and  detect  the  forgery  of  franks. 
He  was  previously  asked  by  plaintiff's  counsel,  if  by  the  bare  inspec- 
tion of  a  handwriting  he  could  pretend  to  ascertain  whether  it  was 
a  real  or  an  imitated  one  ?  He  said  (that  except  in  a  very  few  cases) 
he  could  only  do  it  by  comparison  of  hands,  or  by  knowing  the 
party's  handwriting.  It  was  admitted  that  he  did  not  know  the  de- 
fendant's handwriting.  Lord  KENTON  ruled  that  the  witness  should 
not  be  allowed  to  decide  on  such  comparison  of  hands,  and  his  testi- 
mony was  rejected.2  Soon  thereafter  his  lordship  made  a  similar 
ruling  in  an  action  of  assumpsit  against  the  indorser  on  a  bill  of 
exchange.3 

Same  —  signature  —  warrant  of  attorney. 

§  472.  The  above  ruling  was  adhered  to  in  England,  in  1795,  in 

1  State  v.  Allen,  1  Hawks  (N.  C.),  6.        3  Batchelor  v.  Honeywood,  2  Esp.  714. 
8  Stranger  v.  Searle,  1  Esp.  14. 


328  THE  LAW  OF  IDENTIFICATION. 

an  action  on  the  acceptance  of  a  bill  of  exchange,  which  defendant 
claimed  to  be  a  forgery ;  among  others  plaintiff  called  one  Coulson, 
who  was  an  inspector  of  franks  in  the  post-office,  to  prove  that  he 
had  frequently  seen  stamps  pass  the  office  in  defendant's  name  (he 
being  a  member  of  Parliament),  and  that  from  the  character  in  which 
those  franks  were  usually  written,  he  believed  this  acceptance  to  be 
the  defendant's  handwriting .  He  had  never  seen  him  write  or  re- 
ceived any  letters  from  him.  Lord  KENYON  held  that  the  evidence 
was  not  admissible.  That  the  farthest  extent  to  which  the  rule  had 
been  carried  was  to  admit  a  person  who  had  been  in  the  habit  of 
holding  an  epistolary  correspondence  with  the  party  to  prove  hand- 
writing from  the  knowledge  he  acquired  in  the  course  of  that  cor- 
respondence.1 Upon  an  issue  involving  the  genuineness  or  forgery 
of  a  warrant  of  attorney,  the  verdict  established  the  genuineness  of 
the  signature,  upon  evidence  satisfactory  to  the  trial  judge.  An  in- 
spector of  franks,  who  had  never  seen  the  party  write,  was  called  to 
prove,  from  his  knowledge  of  handwriting  in  general,  that  the  signa- 
ture in  question  was  not  genuine,  but  an  imitation;  the  evidence  hav- 
ing been  rejected,  the  court  refused  to  disturb  the  verdict,  on  the 
ground  that  such  evidence,  even  if  admissible,  was  entitled  to  very 
little  weight,  and  the  issue  being  to  satisfy  the  court,  a  new  trial 
ought  not  to  be  granted,  unless  for  the  rejection  of  evidence  which 
might  reasonably  have  altered  the  verdict.2 

Libel  —  signature — expert  testimony  received. 

§  473.  In  an  action  for  libel  it  was  held  that  where,  to  prove  that 
the  paper  alleged  to  be  libelous  was  in  the  handwriting  of  the  de- 
fendant, plaintiff  introduced  witnesses  who  had  seen  him  write,  and 
who  testified  that  they  believed  the  paper  to  be  in  the  handwriting 
of  the  defendant,  but  who,  on  their  cross-examination,  said  that  they 
did  not  know  that  they  were  sufficiently  acquainted  with  his  hand 
to  determine,  except  by  comparing  it  with  the  other  writings  of 
his  proved  to  be  genuine,  such  testimony  was  admissible.  Where 
the  plaintiff,  in  such  case,  offered  the  testimony  of  cashiers  of 
banks,  who  had  never  seen  the  defendant  write,  and  who  had  no 
knowledge  of  his  handwriting,  but  who  had  compared  the  paper  in 
question  with  other  writings  proved  to  be  his,  and  who  testified  that 
they  were  written  by  the  same  hand,  and  that  such  paper  was  in  a 

1  Carey  v.  Pitt,  2  Peake,  130.  9  Ourney  v.  Langlands,  5  Barn.  &  Aid. 

380. 


HANDWRITING  —  COMPARISON.  329 

disguised  hand,  it  was  held  that  such  cashiers  as  persons  of  skill  in 
their  art  were  competent  witnesses  to  establish  these  points.1* 

Libel  —  newspapers  —  identity  —  type  —  handwriting. 

§  474.  In  action  on  the  case  brought  in  Pennsylvania  in  1812, 
against  defendant,  for  two  libels  published  in  his  gazette,  known  as 
the  Democratic  Press,  the  plaintiff  being  editor  of  a  gazette  called 
the  Freeman's  Journal,  it  was  held  that  evidence  from  a  comparison 
of  handwriting,  supported  by  other  circumstances,  is  admissible  upon 
the  same  principle  from  a  comparison  of  the  types,  devices,  etc.,  of 
two  newspapers,  one  of  which  is  clearly  proved,  and  the  other  im- 
perfectly ;  the  jury  may  be  authorized  to  infer  that  both  were 
printed  by  the  same  person.  To  print  and  publish  of  "  A."  that 
he  has  been  deprived  of  a  participation  of  the  chief  ordinances  of 
the  church  to  which  he  belongs,  and  that,  too,  by  reason  of  his  in- 
famous ' '  groundless  assertions,"  is  a  libel.  So  held  to  be.2 

Words  —  insurance  —  proof  of  policy. 

§  475.  In  an  action  of  libel  in  New  York  in  1813,  parol  evidence 
was  held  to  be  admissible  to  prove  the  averment  in  the  declaration 
that  the  plaintiff  was  State  printer  and  president  of  the  Mechanics 
and  Farmers'  Bank ;  those  facts  being  stated  as  matter  of  inducement, 
and  collaterally.  Where  a  witness  swore  that  he  was  a  printer,  and 
had  been  in  the  office  of  the  defendant,  where  a  paper  called  the 
Ontario  Messenger  was  printed,  and  he  saw  it  printed  there,  and 
the  paper  produced  by  the  plaintiff  he  believed  was  printed  with  the 
type  used  in  the  defendant's  office,  this  was  held  to  be  prima  facie 
evidence  of  the  publication  of  such  newspaper  by  the  defendant.3 

1  Lyon  v.  Lyman,  9  Conn.  55.     Citing    642;  Lord  Preston's  case,  12  St.  Tr.  645; 
Francia's  case,  15  St.    Tr.  897;  Lyon's    De  la  Mott's  case,  21  id.  810. 
case,  16  id.  93;  Rex  v.  Hensey,  1  Burrow,        *  M'Corkle  v.  Binns,  5  Binn.  (Pa.)  340. 
3  South  wick  v.  Stevens,  10  Johns.  443. 

*  In  United  States  v.  Holtsclaw,  2  Hayw.  (N.  C.)  379,  there  was  a  rule  laid  down  prior  to  1806,  it 
seems,  embodying  the  following:  "The  objection  made  by  Mr.  Seawell,  that  no  one  shall  speak 
as  to  the  handwritings  of  the  president  and  cashier  of  a  bank  but  one  who  has  seen  them  write, 
or  has  been  in  the  habit  of  receiving  letters  from  them  in  a  course  of  correspondence,  is  not  a 
sound  one.  These  signatures  are  known  to  the  public,  and  persons  who  have  been  much  hi  the 
habit  of  distinguishing  the  genuine  from  the  counterfeit  signature,  and  conversant  in  dealing 
for  bank  bills,  are  as  well  qualified  to  determine  of  their  genuineness,  as  persons  who  in  private 
correspondence  have  received  letters  from  the  person  whose  handwriting  is  in  question.  More- 
over, it  is  determined  by  the  skillful  whether  a  bill  be  genuine  not  only  by  the  signature,  but 
also  by  the  face  of  the  bill,  and  by  the  exact  conformity  of  the  devices  which  are  used  for  the 
detection  of  counterfeits  to  those  in  true  bills.  We  are  of  opinion  that  the  judgment  of  persons 
well  acquainted  with  bank  paper  is  sufficient  evidence  to  determine  whether  the  one  in  question 
be  genuine  or  otherwise."  For  a  witness  to  be  competent  to  testify  as  to  the  genuineness  of  a 
person's  signature  he  must  possess  the  knowledge,  that  is  'the  test;  and  it  does  not  depend  so 
much  upon  the  means  by  which  he  acquired  that  knowledge. 

42 


330  THE  LAW  OF  IDENTIFICATION. 

In  an  action  for  words  spoken,  to  the  effect  that  plaintiff  had  insured 
his  house  against  loss  by  fire,  and  burnt  it  to  defraud  the  insurance 
company,  it  became  necessary  to  prove  and  identify  the  policy  of 
insurance.  It  bore  the  names  of  two  of  the  directors,  and  one  J.  S. 
as  attesting  witness,  who  was  called  to  prove  the  execution  of  the 
policy.  He  testified  that  it  was  not  executed  in  his  presence.  Lord 
ELLENBOKOUGH  said :  "  The  policy  purports  to  have  been  executed 
in  the  presence  of  the  witness ;  I  must,  therefore,  take  it  to  have  been 
executed  in  his  presence,  if  it  was  executed  at  all.  If  it  was  not  ex- 
ecuted in  his  presence,  the  conclusion  of  law  is,  that  it  was  never 
executed  as  a  deed,  although  it  may  have  been  signed  by  these  two 
directors.  Nor  can  I  admit  evidence  of  their  acknowledgment,  since 
the  attestation  points  out  the  specific  mode  in  which  the  execution, 
is  to  be  proved."1 

Bond  attested  in  the  absence  of  obligor. 

§  476.  An  action  was  brought  on  a  bond  for  £1,000.  On 
the  trial,  the  witness  whose  name  appeared  as  attesting  witness 
on  the  bond,  and  who  was  a  sister  of  the  obligor,  swore  that  the  de- 
fendant never  executed  the  bond  in  her  presence,  but  that  it  was 
brought  to  her  into  a  room  when  the  defendant  was  not  present, 
and  she  was  desired  to  subscribe  her  name  to  it  as  a  witness,  which 
she  did ;  and  that  she  did  not  remember  whether  there  was  at  the 
time  any  seal  affixed  to  the  bond,  nor  whether  she  was  ever  present 
when  any  seal  was  aifixed.  The  plaintiff  then  called  a  co-obligor, 
having  released  him ;  he  was  a  bankrupt,  and  the  son  of  the  defend- 
ant ;  it  was  insisted  that  his  evidence  was  not  admissible.  It  was 
held  that  signing  the  bond,  which  purported  to  be  sealed  with  the 
obligor's  seal,  was  evidence  to  be  left  to  the  jury  of  the  sealing  and 
delivery,  and  that  they,  disbelieving  the  second  witness,  found  for  the 
defendant.2 

Alteration  in  written  instrument  —  word. 

§  477.  In  the  trial  of  an  action  of  ejectment  in  California,  de- 
fendant's counsel,  in  his  argument  to  the  jury,  insisted  that  a  word  in 
a  document  offered  in  evidence  was  originally  written  different  from 
what  it  there  appeared,  and  that  the  same  had  been  changed  by  an- 
other word,  and  the  court  then  permitted  the  jury  to  examine  and 
inspect  the  document  and  judge  for  themselves  if  such  were  the  fact. 

1  Phippsv.  Parker,  1  Campb.  412.  J  Talbot  v.  Hodson,  7  Taunt.  251. 


HANDWRITING  —  COMPARISON.  331 

It  was  held  not  to  be  error  for  the  court  then  to  refuse  to  instruct 
the  jury  that  they  might  determine  for  themselves  whether  or  not 
the  word  had  been  changed ;  that  an  alteration  made  in  a  word  or 
words  in  an  instrument,  after  it  is  written,  and  not  noted  at  the  bot- 
tom before  it  is  signed,  was  not  void  as  evidence,  if  made  innocently 
or  by  consent  of  the  parties ;  and  if  the  alteration  be  made  after  the 
signing,  and  innocently  made,  if  made  to  conform  the  paper  to  the 
intention  of  the  parties,  it  is  not  thereby  rendered  void.1 

Witness  —  knowledge  —  how  acquired. 

§  478.  Ancient  writings  may  be  proved  and  established  in  Eng- 
land by  those  who  are  familiar  with  handwriting  without  the  pro- 
duction of  any  instrument  or  document  for  the  purpose  of  a  direct 
comparison.  But  the  comparison  of  handwriting  under  investigation 
may  be  proved  by  any  witness,  if  the  witness  be  acquainted  with  the 
handwriting  in  the  ordinary  course  of  business.  It  was  so  held  in 
the  case  of  Sir  B.  W.  Bridges  to  the  barony  of  Fitzwalter,  as  re- 
ported in  Fitzwalter  Peerage,  10  01.  &  Fin.  193.  In  which  case  it  be- 
came necessary  to  show  family  pedigree  from  the  proper  custody  of 
records  made  ninety  years  before,  by  his  ancestor.  To  establish  this, 
the  family  solicitor  was  called  to  establish  the  fact,  and  when  he  tes- 
tified that  he  was  acquainted  with  the  ancestor's  handwriting,  from 
having  examined  the  same,  as  having  purported  to  have  been  signed 
by  him,  the  lords  considered  his  testimony  competent  to  prove  pedi- 
gree. How  easy  it  is  to  prove  pedigree  in  England,  when  the  claim- 
ant to  the  peerage  is  favored.  But  how  was  it  in  the  Berkley  Peer- 
age case,  where  the  case  failed?  Again,  in  the  case  of  Doe  v.  Davies, 
10  Q.  B.  314,  where  it  became  necessary  in  pedigree  to  rely  upon  a 
marriage  certificate,  signed  eighty-five  years  prior  thereto  by  W. 
Davies,  the  then  curate  of  the  parish,  the  document  was  held  admis- 
sible, on  proof,  by  the  parish  clerk,  that  in  the  course  of  his  official 
duty  he  had  acquired  a  knowledge  of  the  handwriting  of  Mr.  Davies. 
While  there  were  several  objections  to  this,  all  objections  were  held 
to  be  untenable,  and  this  testimony  was  admitted.  But  all  this  fails  to 
settle  the  question : — Can  a  witness  testify  that  he  acquired  a  knowl- 
edge of  the  handwriting  of  a  person,  not  from  the  course  of  business, 
but  from  studying  the  signature  proved  and  admitted  to  be  genu- 
ine, but  not  produced  to  identify  the  writing  ?  The  above  cases  were 

1  Sill  v.  Reese,  47  Cal.  294. 


332  THE  LAW  OF  IDENTIFICATION. 

decided  in  direct  opposition  to  the  earlier  English  cases,  and  this,  too, 
prior  to  the  act  of  Parliament  of  the  year  1854.1 

Same  —  English  precedents. 

§  479.  Even  before  the  act  of  Parliament  of  1854:,  the  courts  of 
England,  in  many  well-considered  cases,  had  admitted  evidence  of 
comparison  of  handwriting,  and  it  was  held  that  the  testimony  of 
skilled  witnesses  (not  experts)  would  be  admitted,  to  throw  light 
upon  doubtful  or  disputed  signatures,  by  actual  comparison.2  And 
upon  this,  the  testimony  is,  perhaps,  as  unreliable  as  expert  testimony 
itself.  When  a  witness  is  called  to  testify  as  to  the  genuineness  of 
a  signature  to  a  paper  in  court,  and  he  has  acquired  a  knowledge  of 
the  handwriting  from  any  of  the  sources  which  the  courts  have  held 
sufficient,  the  witness  carries  the  recollection  of  such  handwriting  in 
his  memory,  and  this  he  compares  with  the  signature  in  dispute,  is 
this  better  proof  than  an  actual  comparison,  in  court,  of  the  disputed 
paper  and  one  proved  to  be  genuine  ?  It  is  no  more  or  less  than  com- 
parison at  best ;  and  to  exclude  the  comparison  of  the  two  papers, 
or  signatures,  and  then  permit  the  witness  to  compare  one  paper 
with  his  recollection  of  another  paper  (previously  seen  by  him),  is 
a  glaring  absurdity  in  the  very  nature  of  things.  And  to  exclude 
such  comparison  from  a  jury  is  equally  absurd,  unless  it  be  upon  the 
untenable  position  taken  by  the  early  English  cases  that  the  jurors 
were  illiterate.  And  even  then  the  witness  may  be  equally  illiter- 
ate. What  then  ?  Call  an  expert,  whose  testimony  is  conceded  to 
be  the  weakest,  most  feeble  and  delicate  that  has  ever  been  produced 
in  a  court  of  justice,  especially  on  a  question  of  handwriting  ?  It 
does  not  arise  to  the  dignity,  and  scarcely  deserves  the  nature  of  tes- 
timony, much  less  evidence.  And  doubtless  this  was  the  view  taken 
by  the  English  Parliament  in  1854,  when  the  act  was  passed,  which 
admits  comparison  of  handwriting  by  the  witness  and  by  the  jurors, 
of  papers,  whether  filed  in  court  in  the  case  or  not.3 

i  Doe  v.  Lyne,  2  Phil.  Ev.  618;    Doe  2  Spencer  v.  Spencer,   40  L.  J.  Pr.  & 

v.  Suckermore,  5  A.  &  E.  717.     The  lat-  Mat.  45. 

ter  case  has  been  followed  by  the  A meri-  3  Tracy  Peerage,  10  Cl.  &    Fin.  154; 

can  decisions,  and  also  by  the  English  Doe  v.  Suckermore,  5  A.  &  E.  718. 
decisions  prior  to  the  act  of  the  English 
Parliament  of  1854. 


CHAPTER  XII. 


IDENTITY  OF  REAL  ESTATE. 


SEC.  SEC. 

480.  Real  estate  —  identity — boundaries    502. 

—  river. 

481.  Same  —  land  bounded  by  a  pond  —    503. 

boundary  of  pond. 

483.  Land  bounded  by  river  —  notnavi-    504. 
gable.  505. 

483.  Construction  of  deed  —  two    de- 

scriptions. 506. 

484.  Two   descriptions  —  rule  in    New    507. 

Hampshire. 

485.  When  the  title  to  pass — true  and    508. 

false  descriptions.  509. 

486.  Monument  —  distances  —  location 

of  street.  510. 

487.  Courses  and  distances  yield  to  mon-    511. 

uments. 

488.  Construction  of  deed  —  identity  of    512. 

land. 

489.  Same  —  description  —  rule  in  Cali-    513. 

fornia. 

490.  Same  —  descriptions  —  identity  — •    514. 

construction  —  metes  and  bounds. 

491.  Land  bounded  by  stream  —  ripa-    515. 

rian  rights. 

492.  Same  —  cutting  ditch  for  mill-race.     516. 

493.  Same — boundary    lines — objects 

—  monuments.  517. 

494.  Same  —  description — extrinsic  evi- 

dence. 518. 

495.  Same  —  description  —  rule  in  Cali- 

fornia. 519. 

496.  Fire  insurance  —  identity  — eject- 

ment —  description.  520. 

497.  Description  —  when     sufficient  — 

oral  testimony.  521. 

498.  Deed  —  construction  of  description. 

499.  Description  —  reference  to  another    522. 

deed.  523. 

500.  What  is  sufficient  identification  ? 

501.  Survey  —  difficulty  in  identifying 

lands. 


Description  of  land  —  plan  lost  — 
identity  thereof. 

Deed  fifty  years  old  —  identity  of 
grantor. 

Oral  testimony  —  latent  ambiguity. 

Land  —  identity  of  boundaries  — 
rule  in  Maine. 

Same  —  rule  in  California. 

Same  —  call  for  old  lines  —  for  the 
jury. 

Same  —  tax  deed  —  rule  in  Ohio. 

Same  —  land  sold  for  taxes  —  iden- 
tification. 

Same  —  patent  —  land  in  Virginia. 

Same  —  Tennessee  lands  —  North 
Carolina  laws. 

Patent  —  lands  —  mistake  —  juris- 
diction. 

Deed  to  father  —  instead  of  son  — 
rule  in  Vermont. 

Deed  —  alleged  forgery  —  rule  in 
Vermont. 

Acknowledgment  —  what  com- 
plies with  the  statute. 

Same  —  same  —  rule  on  the  sub- 
ject. 

Same  —  certificate  —  when  fatally 
defective  —  rule  in  Wisconsin. 

Identity  of  land  —  mistake  in  num- 
bers. 

Description  of  land  —  identity  of 
survey  —  rule  in  Ohio. 

Description  of  land  —  identification 
—  rule  in  Maine. 

Description  of  land  —  identity  — 
rule  in  Massachusetts. 

Identity  of  land  sold  for  taxes. 

Misdescription  of  land  —  decree  — 


Eeal  estate  —  identity  —  boundaries  —  river. 

§  480.  In  all  questions  involving  the  identity  of  real  estate,  resort 
must  be  had  to  its  boundaries  —  the  boundary  lines  which  mark  the 
confines  or  divisions  of  contiguous  or  adjacent  estates.  It  signifies 
the  line  which  fixes  the  limits  of  any  specified  piece,  parcel  or  tract 
of  land,  or  real  property,  or  ascertained  limits  of  adjoining  lands 
owned  by  different  proprietors.  A  line  or  connected  series  of  lines 


334  THE  LAW  OF  IDENTIFICATION. 

going  around  a  territory  or  tract  of  land,  and  inclosing  it  on  all 
sides.  These  are  boundaries,  usually  designated  by  some  monu- 
ment— conspicuous  object,  as  rocks,  trees,  stakes,  aheap  of  stones,  etc. 
The  boundaries  which  identify  certain  parcels  of  real  property,  as  be- 
tween adjacent  owners,  is  usually  settled  by  the  conveyances  by  which 
they  hold  title.  In  the  construction  of  a  grant,  where  it  is  described  as 
bounded  by  a  house,  it  is  not  to  be  construed  so  as  to  include  the 
house,  as  the  boundaries  are  not  generally  included  in  the  grant. 
But  if  bounded  by  a  river  or  a  ditch,  the  grant  would  extend  to  the 
center  thereof,  unless  otherwise  provided  or  indicated  in  the  con- 
veyance itself. 

Same  —  land  bounded  by  a  pond  —  boundary  of  pond. 

§  481.  Where  the  conveyance  described  the  land  as  bounded  by 
the  "  bank  of  a  river"  or  "  bank  of  a  stream,"  the  Pennsylvania 
court  held  that  the  bank  of  the  stream  is  the  margin  where  vegeta- 
tion ceases,  and  the  shore  is  the  pebble,  sandy  or  rocky  space  between 
that  and  low- water  mark.1  In  a  Massachusetts  case,  the  deed  de- 
scribed the  land  as  bounded  by  a  certain  pond,  and  in  the  applica- 
tion of  the  deed  to  the  objects  described  by  the  terms  of  the  deed, 
it  was  found  that  the  pond  was  a  natural  pond,  which  was  raised 
more  or  less  at  different  times  by  means  of  a  dam  existing  and  in 
use  at  the  time  of  the  conveyance;  so  there  was  a  latent  ambiguity, 
and  it  was  held  to  be  competent  for  the  party  to  prove  by  parol  evi- 
dence that  a  certain  line  was  agreed  on,  and  understood  at  the  time 
of  the  conveyance,  as  to  the  boundary  of  the  pond.2 

Land  bounded  by  a  river  —  not  navigable. 

§  482.  Where  the  deed  of  land  described  it  as  bounded  on  one 
side  by  a  certain  river,  which  river  was  not  navigable,  and  the  line  ran 
to  the  bank  thereof,  and  by  and  along  said  stream  or  bank,  it  was  held 
to  extend  to  the  middle  or  center  of  the  stream,  unless  there  be  some 
other  description  in  the  deed  indicating  clearly  a  contrary  intention.3 
Where  a  hotel  was  sold  and  conveyed  "  with  the  lands  adjoin- 
ing it,"  it  was  held  that  a  small  island  at  the  rear  of  the  hotel  did 
not  pass  by  such  description  in  the  deed.4  The  description  in  a  deed, 

1  McCullougb  v.    Wainright,   14  Pa.  v.  Qilmanton,  9  N.   H.  461;  Hammond 

St.  171.  v.  Ridgely,  5  Harr.  &  J.  245;  Hatch  v. 

8  Waterman  v.  Johnson,  13  Pick.  261.  Dwicrht,  17  Mass.  289;  Gove  v.  White, 

*  Comrs.  v.  Kempshall,  26  Wend.  404;  20  Wis.  432;  People  v.  Platt,  17  Johns. 

Morgan  v.  Reading,  3  Smedes  &  Mar.  19o;   Arnold  v.   Elmore,   16  Wis.  514; 

(Miss.)  366;  Morrison  v.   Keen,  3  Me.  Browne  v.  Kennedy,  5  Harr.  &  J.  195. 

474;  Yates  v.  Judd,  18  Wis.  123 ;  State        4  Miller  v.  Mann,  55  Vt.  475. 


IDENTITY  OF  REAL  ESTATE.  335 

commencing  at  a  certain  point  on  the  river,  and  only  running  around 
three  sides  of  the  tract  of  land  to  another  point  on  the  same  river, 
closed  with  these  words,  "  meaning  to  convey  all  the  land  east  of 
the  said  mentioned  bounds  that  I  own."  The  land  was  on  the  east 
side  of  the  river ;  it  was  held  to  be  sufficiently  identified  to  pass  the 
property.1 

Construction  of  deed  —  two  descriptions. 

§  483.  It  is  a  cardinal  rule  in  the  construction  of  deeds,  to  ascer- 
tain, if  possible,  the  intent  and  meaning  of  the  grantor  upon  explor- 
ing the  whole  instrument ;  and  then  to  give  effect  to  that  intent,  if 
it  can  be  done  without  doing  any  violence  to  the  recognized  rules  of 
law.2  It  seems  now  to  be  a  well-recognized  rule  of  the  construction 
of  deeds  that  if  the  deed  recite  two  descriptions  of  the  property 
conveyed,  one  of  which  sufficiently  identifies  the  property,  while  the 
other  is  false,  in  fact,  the  false  description  should  be  rejected  as 
surplusage.  That  a  deed  conveying  a  right  of  way  upon  land,  in, 
to,  and  for  a  ditch  called  the  Mountain  Brow  Ditch,  was  a  convey- 
ance the  ditch  itself.3 

Two  descriptions  —  rule  in  New  Hampshire. 

§  484.  Where  a  deed  attempts  to  give  two  descriptions  of  the 
premises  conveyed,  and  one  is  general  and  the  other  is  particular, 
and  they  are  contradictory,  conflicting  or  irreconcilable,  the  general 
rule  seems  to  be,  that  the  latter  will  be  rejected,  where  the  former 
sufficiently  identifies  the  premises  to  pass  the  title  to  the  grantee.4 
The  exact  location  of  monuments,  such  as  trees,  stakes,  stones  and 
the  like,  referred  to  in  a  deed,  may  always  be  proved  by  parol  evi- 
dence.5 An  action  was  brought  in  New  Hampshire  to  foreclose  a 
mortgage  on  real  estate,  and  involved  the  identity  of  the  premises, 
the  defendant  insisting  that  the  mortgage  did  not  include  the  land 
described  in  the  bill,  and  there  was  much  complication  and  difficulty 
in  identifying  the  land.  The  court  announced  the  rule  thus  :  "  In 
construing  a  description  of  property  granted  or  devised  in  a  deed 

1  Buck  v.  Squiers,  22  Vt.  484;  Ammi-    Ladd,  26  111.  415.     But  see  Woodman 
down  v.  Bank,  8  Allen,  292.  v.   Lane,  7  N.   H.   241;   Thorndike   v. 

2  Peyton  v.  Ayres,  2  Md.  Ch.  64;  Ham-    Richards,  1  Shepl.  430. 

ner  v.    Smith,  22  Ala.  433;  Collins  v.  B  Blake  v.    Doherty,  5  Wheat.    359; 

Lavelle,  44  Vt.  230.  Claremont   v.    Carl  ton,  2  N.   H.    373; 

3  Reed  v.  Spicer,  27  Cal  57.  Hedge  v.  Sims,  29  Ind.  574;    Owen  v. 

4  Makepeace    v.   Bancroft,    12  Mass.  Bartholomew,  9  Pick.  520;   Reamer  v. 
469;  Beeson  v.  Patterson,  36  Pa.  St.  24;  Nesmith,  34  Cal.  624. 

Havens  v.  Dale,  18  Cal.  359;  Myers  v. 


336  THE  LAW  OF  IDENTIFICATION. 

or  will,  the  facts  of  the  case  are  to  be  first  ascertained,  that  tfie 
instrument  may  be  interpreted  with  reference  to  the  actual  facts 
which  were  before  the  grantor  or  devisor,  because  in  this  way  their 
intention  may  be  most  readily  and  satisfactorily  ascertained.  The 
whole  language  of  the  deed  is  to  be  taken  together,  and  effect, 
if  possible,  is  to  be  given  to  every  part.  If  by  any  rational  con- 
struction, the  several  parts  can  be  made  to  harmonize  and  to  consist 
with  the  obvious  general  intent  of  the  maker,  there  can  be.  no  good 
reason  for  rejecting  any  part,  or  denying  to  it  its  legitimate  effect. 
No  word  or  clause  is  to  be  rejected  or  overlooked,  if  a  reason- 
able and  consistent  construction  can  be  given  to  them."1  And 
again,  "  there  is  another  elementary  principle  applicable  to  cases  of 
this  kind  :  that  where  the  description  of  the  estate  intended  to  be 
conveyed  includes  several  particulars,  all  of  which  are  necessary  to 
ascertain  the  estate  to  be  conveyed,  no  estate  will  pass,  except  such 
as  will  agree  with  the  several  particulars  of  the  description.2 

When  the  title  to  pass  —  true  and  false  description. 

§  4:85.  The  rule  which  we  have  just  seen  announced  in  New 
Hampshire  seems  to  be  subject  to  some  modifications  and  limitations. 
Where  there  are  several  particulars  in  a  description  of  land  conveyed, 
some  of  them  may  be  incorrect  and  false,  and  others  correct  and  true  ; 
then  if  it  can  be  ascertained  from  such  parts  of  the  description  as 
are  correct,  what  was  intended  to  be  conveyed,  the  property  will 
pass  thereby,  the  incorrect  or  false  description  will  be  rejected;  this 
has  been  often  held.3  Though  it  was  held  in  one  case  in  New 
York,  involving  this  question,  in  1865,  where  the  description  con- 
tained several  particulars,  that  the  title  would  not  pass,  except  such 
as  corresponded  with  all  the  particulars.4  But  this  case  and  the 
New  Hampshire  case  seem  to  stand  alone.  It  has  been  very  often 
decided,  both  in  England  and  America,  that  if  any  one  of  the 
descriptions  is  sufficient,  the  others  may  be  rejected  and  the  land 

1  Bell    v.  Woodward,  46  N.  H.  315,  Mosley  v.  Massey,  8  East,  149;  Hull  v. 

331.     Citing  Drew  v.  Drew,  28  id.  495;  Fuller,  7  Vt.  100;   Lyman  v.  Loomis,  5 

"Webster  v.  Atkinson,  4  id.  23;  Jackson  N.  H.  408;    Bott  v.   Burnell,   11   Mass, 

v.  Moore,  6  Cow.  706;  Hibbard  v.  Hurl-  163;   Mason   v.    White,    11    Barb.   173; 

burt,  10  Vt.  178.  Lush  v.  Druse,  4  Wend.  313;  White  v. 

8  Hathaway   v.  Power,   6    Hill,  453;  Way,  9  N.  H.  126;  Smith  v.    Strong,  14 

Jackson  v.  Clark,  7  Johns.  217;  Jack-  Pick.  128;  Wendell  v.  People,  8  Weiid. 

son  v.  Marsh,  6  Cow.  281.  183;    Vose    v.    Handy,   2   Greenl.    322; 

3  Rumbold  v.  Rumbold,   8    Ves.   Jr.  Jackson  v.  Moore.  6  Cow.  702;  King  v. 

65:  Robinson   v.  Button,  2  Rolle   Abr.  Little.  1  Cush.  436;  Bosworth  v.  Sturte- 

52;   Lambe  v.  Reaston,  5  Taunt.    207;  vant.  2  Cush.  892. 
Hastead  v.  Searle,  1  Ld.  Rayin.    728;        4  Finlay  v.  Cook,  54  Barb.  9(1865). 


IDENTITY  OF  REAL  ESTATE.  337 

•will  pass.  On  this  Mr.  Tyler  says  on  the  construction  of  deeds:  "  A 
false  or  mistaken  particular  in  a  conveyance  may  be  rejected,  where 
there  are  definite  and  certain  particulars  sufficient  to  locate  the  grant. 
But  prima  facie,  a  fixed  and  visible  monument  can  never  be  rejected 
as  false  or  mistaken,  in  favor  of  mere  course  or  distance,  as  the  start- 
ing point,  where  there  is  nothing  else  in  the  terms  of  the  grant  to 
control  and  override  the  fixed  and  visible  call.  The  general  rule 
that  course  and  distance  must  yield  to  natural  or  artificial  monuments 
or  objects  is  upon  the  legal  presumption  that  all  grants  and  con- 
veyances are  made  with  reference  to  an  actual  view  of  the  premises 
by  the  parties." 

Monuments  —  distances  —  location  of  street. 

§  486.  Ic  is  a  rule,  subject  to  few  exceptions,  that  the  monuments 
of  a  survey  control  the  courses  and  distances.  In  a  case  involving 
this  question,  the  Indiana  court  said  :  "If  controversy  had  arisen 
between  the  proprietors  and  the  public  as  to  the  eastern  boundary 
of  the  street,  in  the  first  instance,  there  can  be  no  doubt  that  the 
monument  fixed  on  the  ground  to  mark  its  boundary,  and  with  ref- 
erence to  which  neighboring  lot-owners  made  their  purchases  and 
improvements,  would  have  controlled,  however  much  measurements 
might  have  indicated  it  to  be  otherwise.  The  question  was,  and  is, 
where  was  the  street  actually  located  ?  m 

Courses  and  distances  yield  to  monuments. 

§  487.  Where  the  true  intention  of  uie  parties  to  a  deed  can  be 
plainly  ascertained  and  the  property  identified,  the  courts  should 
never  resort  to  arbitrary  rules  of  construction.2  In  speaking  of  the 
boundaries  of  real  property  conveyed  by  deed,  Mr.  Washburn  says  :3 
"  But,  ordinarily,  surveys  are  so  loosely  made,  instruments  so  liable  to 
be  out  of  order,  and  admeasurements,  especially  on  rough  or  uneven 
land  or  forests,  so  liable  to  be  inaccurate,  that  the  courses  and  dis- 
tances given  in  a  deed  are  regarded  as  more  or  less  uncertain,  and 
always  give  place,  in  questions  of  doubt  or  discrepancy,  to  known 
monuments  and  boundaries  that  are  referred  to  in  the  deed  as  indi- 
cating and  identifying  the  land."  Where  the  distance  given  was 
but  a  few  feet,  and  given  in  feet  and  inches.4 

1  Evansville  v.  Page,  23  Ind.  525,  527.  v.  Foster,  4  Wash.  C.  C.  45  ;    1  U.   S. 

2  Kirnball  v.  Semple,  25  Cal.  449.  Dig.,  "  Boundaries,"  §  15,  where  many 

3  3  Washb.  Real  Prop.  (5th  ed.)  427;  cases  are  collected;  Lodge  v.  Barnett,  46 
Davis  v.  Rainsford,  17  Mass.  207,  210.  Pa.  St.  484;  Evansville  v.  Page,  23  Ind. 

6  Howe  v.  Bass,  2  Mass.  380;  Frost  527;  Harris  v.  Hull,  70  Ga.  831;  Frost 
v.  Spaulding,  19  Pick.  445;  M'Pherson  v.  Angier,  127  Mass.  212. 

43 


338  THE  LAW  OF  IDENTIFICATION. 

Construction  of  deeds  —  identity  of  lands. 

§  488.  The  description  of  real  estate  in  a  deed  of  conveyance  is 
to  identify  what  the  parties  intended,  the  one  to  receive  and  the 
other  to  convey ;  and  if,  in  all  cases,  the  description  in  the  deed 
would  fully  identify  the  property,  it  would  save  the  courts  the  diffi- 
cult work  of  construing  the  deed,  to  ascertain  what  the  parties  really 
intended  by  executing  such  a  document ;  but  that  is  not  so ;  and 
the  courts  must  often  resort  to  the  rules  of  interpretation  to  deter- 
mine the  real  intent  of  the  parties.1  And  the  deed  must  be  con- 
strued with  reference  to  the  state  of  the  property,  as  the  parties  are 
presumed  to  refer  to  it  in  its  state  at  the  time  of  the  execution  of 
the  deed,  and  to  use  the  terms  which  they  supposed  would  be  a  suffi- 
cient identification  of  the  property  in  its  then  condition.2  Where 
the  owner  of  land,  through  which  a  stream  runs,  changes  the  course 
of  such  stream  by  cutting  a,  ditch  to  carry  off  the  water,  and  he  then 
conveys  to  another,  thereafter,  the  land  upon  which  the  natural  chan- 
nel ran,  and  upon  which  the  burden  of  the  stream  is  cast,  the  gran- 
tee will  hold  his  portion  according  to  its  changed  condition,  and  with 
the  burden  of  the  stream.3 

Same  —  description  —  rule  in  California. 

§  489.  In  an  action  in  California  to  recover  lands,  it  was  held  that 
all  doubts  as  to  the  meaning  of  a  deed  must  be  solved  in  favor  of 
the  grantee.  If  a  deed  contain  different  descriptions,  one  of  which 
applies  to  the  land  which  the  grantor  owned,  and  the  other  to  land 
which  he  did  not  own,  the  former  should  be  taken  as  true,  and  the 
latter  as  false.  Where  there  is  a  latent  ambiguity  in  a  deed,  testi- 
mony as  to  the  facts  and  circumstances  surrounding  the  parties,  and 
the  subject-matter  at  the  time  of  the  execution  of  the  deed,  is  rele- 
vant. That  where  the  general  descriptions  are  followed  by  particu- 
lar descriptions  in  a  deed,  the  latter  will  not  restrict  the  former,  if 
they  have  been  used  in  the  sense  of  reiteration  or  affirmation.  That 
the  rule  that,  in  the  execution  of  deeds,  facts  and  events  which  have 
transpired  since  the  deeds  were  executed,  cannot  be  considered,  does 
not  exclude  events  which,  at  the  time  of  the  execution  of  the  deed, 
the  parties  knew  might  happen.4 

1  Walls  v.  Preston,  25  Cal.  65.  18  Iowa,  856;  Rider  v.  Thompson,  23 

9  Adams  v.  Frothingham,  8  Mass.  852;  Me.  244;  Richardson  v.  Palmer,  38  N. 

Pollard  v.  Maddox,  28  Ala.  825;  Lane  H.  218;  Abbott  v.  Abbott,  51  Me.  581. 

v.  Thompson,  43  N.  H.  824;  Dunklee  v.  8  Roberts  v.  Roberts,  55  N.  Y.  275. 

B.  Co.,  24  id.  489;  Karmuller  v.  Krotz,  4  Piper  v.  True,  36  Cal.  606. 


IDENTITY  OF  KEAL  ESTATE.  339 

Same  —  description  in  deed  —  identity  —  construction—  metes  and 
bounds. 

§  490.  It  is  held  that  where  it  becomes  necessary  to  explain  the 
calls  in  a  deed  for  the  purpose  of  their  application  to  the  subject- 
matter,  and  then  to  give  effect  to  the  deed,  extrinsic  evidence  is 
always  admissible.  When  the  true  intent  has  been  once  ascertained, 
it  is  then  competent  to  admit  parol  evidence  to  establish  the  proper 
location  of  all  the  descriptive  designations  and  calls  of  the  deed,  for 
the  purpose  of  determining  whether  or  not  the  land  in  controversy 
passed  by  snch  deed,  and  thus  aid  in  carrying  out  the  true  intent  of 
the  parties.  And  so,  for  the  same  purpose,  for  the  explanation  of 
the  meaning  of  particular  expressions  used  in  the  deed,  parol  evi- 
dence is  admissible,  where  such  expressions  do  not  carry  a  definite 
meaning  without  such  explanation.1* 

Land  bounded  by  stream  —  riparian  rights. 

§  491.  In  Texas,  where  land  was  bounded  by  a  river,  and  where  the 
contest  was  between  two  riparian  possessors,  it  was  held  to  be  a  prin- 
ciple of  law,  well  settled,  that  where  a  fresh-water  stream  is  made  the 
1  Reamer  v.  Nesmith,  34  Cal.  624. 

*  In  the  case  of  Reamer  v.  Nesmith,  34  Cal.  624,  the  court,  giving  the  facts,  said  :  "  The  case 
shows  that  the  land  in  dispute  lies  upon  the  side  of  Swindle  Hill,  in  Yankee  Jim's  mining  dis- 
trict, Placer  county,  being  crossed  near  its  lower  line  by  the  road  leading  from  Yankee  Jim's  to 
Todd's  Valley,  which  road  runs  along  the  side  of  the  hills,  with  a  front,  as  it  is  called,  of  about 
four  hundred  feet,  and  running  back  to  the  summit  or  center  of  the  hill .  The  description  given 
in  the  deed  is  as  follows:  "  All  that  certain  piece  of  mining  ground  situated  in  Comer's  field,  on 
Swindle  Hill,  south  of  the  road  leading  from  Yankee  Jim's  to  Todd's  Valley,  known  as  the  Booth 
claim,  and  marked  by  stakes  and  corners,  four  hundred  feet  front,  more  or  less,  aud 
running  back  into  the  hill.'"  In  view  of  this  description  the  court  below  charged  the  jury 
that  no  part  of  the  ground  lying  above  or  north  of  the  road  was  included  in  the  deed.  In 
this  we  think  the  court  was  in  error.  For  the  purpose  of  determining  the  question,  it  was 
competent  to  ascertain,  by  extrinsic  evidence,  the  precise  location  of  the  land  in  dispute,  and  also 
the  several  calls  or  descriptions  in  the  deed.  For  that  purpose  extrinsic  parol  evidence  is  always 
admissible,  for  in  no  other  way  can  effect  be  given  to  the  deed  by  applying  it  to  the  subject- 
matter.  Parol  evidence  was,  therefore,  admissible;  the  true  location  of  the  ground  in  dispute 
having  been  agreed  upon,  or  otherwise  ascertained  to  show  the  true  location  of  all  the  descrip- 
tive designations  and  calls  named  in  the  deed.  This  being  done,  it  will  be  found  that  the  de- 
scriptive terms  found  in  the  deed  apply  to  the  land  in  dispute,  or  that  they  do  not;  if  the  latter, 
the  land  has  not  passed  by  the  deed;  but  if  some  of  them  apply  to  the  land  and  others  do  not, 
then,  if  those  which  do  apply  describe  the  land  with  sufficient  certainty,  the  land  has  passed, 
for  those  which  do  not  apply  may  be  rejected  as  false .  This  must  be  done  in  order  to  give  effect 
to  the  intent  of  the  parties;  and  as  ancillary  to  this,  it  is  also  competent  to  explain,  by  parol 
testimony,  the  meaning  of  expressions  used  in  the  deed  for  the  purpose  of  describing  the  land, 
which  do  not  carry  a  definite  meaning  without  such  explanation.  Stark.  Ev.  with  notes  by 
Sharswood,  612.  It  was,  therefore,  competent  for  the  defendant  to  show,  by  parol  testimony,  the 
precise  location  of  Comer's  field,  the  road  from  Yankee  Jim's  to  Todd's  Valley,  the  ground 
known  as  the  "  Booth  claim  "  and  what  is  the  full  meaning  of  the  expression  "  running  back  into 
the  hill. "  This  having  been  done,  if  it  appeared  that  some  of  these  descriptions  applied  to  the 
land  in  dispute,  and  others  did  not,  the  court  was  bound  to  reject  the  latter  and  look  only  to  the 
former;  and  if  they  describe  the  land  with  sufficient  certainty,  to  hold  that  it  passed  .by  the 
deed.  Reed  v.  Spicer,  27  Cal.  57;  Mulford  v.  Le  Franc,  26  id.  88." 


340  THE  LAW  OF  IDENTIFICATION. 

boundary  line  between  the  two,  the  middle  or  center  of  the  stream 
was  the  lineal  partition  between  them,  unless  there  be  in  the  deed 
some  terms  expressing  a  contrary  intent  in  the  grant.  And  that  in 
legal  parlance  the  lines  of  a  survey  do  not  always  have  a  mathemat- 
ical definition,  that  they  are  as  broad  as  the  rivers  and  passways  which 
are  appropriated  as  monuments  for  public  as  well  as  private  con- 
venience. ' '  But,  when  so  used,  in  adjusting  the  legal  rights  of 
parties  by  them,  the  center  or  middle  of  them,  whether  a  river, 
a  creek,  a  spring  or  a  passway,  fixes  the  limitation  of  the  rights 
of  the  parties,  unless  otherwise  expressly  provided  for  in  the  feoff- 
ment.1  Monuments,  such  as  well-known  objects,  must  control  in 
ascertaining  a  boundary.2  The  riparian  proprietor  may  convey  the 
stream  without  the  soil,  or  he  may  convey  the  soil  without  the 
stream.3 

Same  —  cutting  ditch  for  mill-race. 

§  492.  In  an  Illinois  case  in  1869,  there  was  an  injunction  to  re- 
strain the  appellees  from  cutting  a  ditch  or  race  from  their  mill  to 
carry  off  the  water  from  the  wheel,  upon  the  ground  that  it  would 
work  an  irreparable  injury  to  the  land  of  the  complainant.  The  point 
was  made  that  the  complainant's  east  line  was  the  center  thread  of 
Cedar  creek,  and  the  ditch  was  cut  in  the  middle  of  the  creek,  and 
through  an  island  below  the  mill.  BREESE,  J.,  said :  "  It  is  a  famil- 
iar principle  that  the  proprietor  of  land  situated  on  a  river  or  stream, 
not  navigable,  is  presumed  to  own  to  the  center  thread  of  the  stream. 
It  is,  however,  but  a  presumption,  for  one  man  may  own  the  body  of 
such  a  stream,  and  another  may  own  the  banks ;  and  where,  in  a  deed 
conveying  land,  the  boundary  is  limited  to  the  bank  of  the  stream, 
instead  of  on  and  along  the  stream,  the  presumption  must  fail.  The 
party  must  be  controlled  by  the  terms  of  his  deed."4 

Same  —  boundary  lines  —  objects  —  monuments. 

§  493.  The  rule  would  seem  to  be  different  from  that  above  stated 
where  the  land  is  bounded  on  and  along  the  bank  of  the  stream.5  It 
is  held  that  one  pieoe  or  parcel  of  land  itself  may  be  a  monument  to 

1  Muller  v.  Landa,  31  Tex.  265.  Hatch  v.  Dwight,  17  Mass.  298;  Child  v. 

"Urquhart  v.  Burleson,  6  Tex.  502;  Starr,  4  Hill(N.  Y.),  369. 

Hubert  v.  Bartlett,  9  id.  97;  Brown  v.  8  Ex  parte  Jennings,  6  Cow.  537;  Ca- 

Huger,   21    How.    305;    Whiteside    v.  nal  Trustees  v.  Haven,  5  Gilm.  (111.) 548; 

Singleton,  1    Meigs,    207;    Knight    v.  King  v.  King,  7  Mass.  496;  Ingraham  v. 

Wilder,  2  Cush.  199.  Wilkinson,  4  Pick.  268;  Gavit  v.  Cham- 

a  Knight  v.  Wilder,  2  Cush.  199.  bers,  3  Ohio,  495. 

4  Rockwell  v.  Baldwin,    53    111.    19; 


IDENTITY  OF  REAL  ESTATE.  341 

determine  the  boundary  line  and  the  limit  of  another.1  A  general 
rule  on  this  subject  was  laid  down  by  the  court  of  Massachusetts,2  in 
1866,  in  which  it  was  held  that  wherever  land  is  described  as  bounded 
by  other  land,  or  by  a  house  or  structure,  the  deed  of  which,  accord- 
ing to  its  legal  or  ordinary  meaning,  includes  the  title  in  the  land  of 
which  it  has  been  made  part,  as  a  house,  mill  or  wharf,  or  the  like, 
the  side  of  the  land  or  structure  referred  to  as  a  boundary  is  the 
limit  of  the  grant.  "  But  when  the  boundary  is  simply  by  an  object, 
whether  natural  or  artificial,  the  name  of  which  is  used  in  ordinary 
speech  as  defining  a  boundary  and  not  as  describing  a  title  or  fee, 
and  which  does  not  in  its  description  or  nature  include  the  earth  as 
far  down  as  the  grantor  owns,  and  yet  which  has  width,  as  in  case 
of  a  way,  a  river,  a  ditch,  a  wall  or  fence,  a  tree,  a  stake  or  a  stone, 
then  the  center  of  the  thing  so  running  over  or  standing  on  the  land 
is  the  boundary  of  the  lot  of  land  granted." 

Same  —  description  —  extrinsic  evidence. 

§  494.  It  was  held  in  California  that  where  a  deed  describes  land 
by  a  particular  name  or  number,  it  is  sufficient ;  and  if  it  could  be 
rendered  certain  by  extrinsic  evidence,  the  description  was  as  good 
as  one  by  metes  and  bounds,  so  that  it  be  capable  of  identification. 
FIELD,  J.,  said  :  "Undoubtedly  effect  should  be  given,  if  possible, 
to  every  part  of  the  description ;  still  if  some  part  is  inapplicable  or 
untrue,  and  enough  remains  to  show  what  was  intended,  the  deed 
must  be  upheld.  The  false  or  mistaken  part  should  be  rejected,  and 
when  that  happens  to  be  a  mere  statement  of  the  quantity,  it  will  be 
done  without  the  least  hesitation.  I  understand  this  deed  to  be  in 
effect  the  same  as  if  the  description  had  been  all  the  land  in  lot  num- 
ber fourteen,  being  one  hundred  and  sixty  acres.  Such  description, 
although  mistaken  as  to  the  quantity,  would,  beyond  doubt,  have 
carried  the  entire  lot."3  A  peculiar  case  arose  in  Texas.  A.  sold  to 
B.  one  hundred  and  sixty  acres  out  of  a  large  tract  of  laud,  and  the 
.deed  did  not  describe  the  land  by  metes  and  bounds  or  by  any  other 
identification  than  as  above  stated..  It  [was  held  that  the  grantee 
had  the  right  to  select  and  locate  his  hundred  and  sixty  acres  on  any 

1  Bates  v.   Tymason,  13  Wend.  300;        3  Stanley  v.  Green,  12  Cal.  148,  162. 
Ake  v.  Mason,  101  Pa.  St.  17;  Bloch  v.  Citing  Jackson  v.  Barringer,  15  Johns. 
Pfaff,  101  Mass.  538;    Carroll  v.  Nor-  471;  Howe  v.  Bass,  2  Mass.  380;  Powell 
wood  4Harr.&McH.287;  Smith  v.Mur-  v.  Clark,  5  id.  355;  Smith  v.  Dodge,  2 
phy,  1  Tayl.  (N.  C.)  303;  Flagg  v.  Thurs-  N.  H.  303;  Large  v.  Penn,  6  S.  &  R.  488; 
ton,  13  Pick.  150.  Belden  v.  Seymour,  8  Conn.  19;  Benedict 

2  Boston  v.  Richardson,  13  Allen,  146,  v.  Gaylord,  11  id.  332;  Brown  v.  Parish, 
154.  2  Dana,  6. 


342  THE  LAW  OF  IDENTIFICATION. 

part  of  the  large  tract.  WHEELER,  C.  J.,  said :  "  A  grant  by  the 
owner  of  a  certain  number  of  acres  in  a  particular  tract  would  con- 
fer a  right  of  election  upon  the  grantee,  and  authorize  him  to  locate 
the  quantity  in  any  part  of  the  tract  he  saw  proper  to  elect,  upon 
the  principle  that  a  conveyance  must  be  held  to  pass  some  interest, 
if  such  effect  may  be  given  to  it,  consistently  with  the  rules  of  law, 
and  that,  if  uncertain  and  ambiguous,  it  must  be  construed  most 
strongly  against  the  grantor."1 

Same  —  description  —  rule  in  California. 

§  495.  In  California  a  complaint  in  an  action  of  ejectment  to  re- 
cover real  estate,  described  the  premises  as  "  lot  No.  1,  in  block  No. 
23,  as  per  plat  of  the  town  of  Red  Bluff,  as  laid  out  by  the  Red 
Bluff  Land  Corporation  in  1853,  being  on  the  corner  of  Maine  and 
Sycamore  streets,  twenty-five  feet  on  Maine,  by  one  hundred  and  fif- 
teen on  Sycamore  and  running  back  to  the  alley.  This  was  held  suffi- 
cient, and  that  the  description  by  metes  and  bounds  is  required  only 
when  necessary  to  identify  the  property  with  certainty.2  In  the  same 
State  a  description  of  land  was  held  not  to  be  defective,  but  sufficient, 
which  called  for  a  lot  of  land,  one  hundred  varas  square,  bounded  on 
three  sides  by  well-known  streets,  upon  the  plat  of  a  city  laid  out, 
surveyed  and  platted,  and  on  the  other  by  the  unsurveyed  lands.3 
The  same  rule  as  in  the  case  where  the  land  lay  on  a  river,  and  was 
surveyed  on  three  sides. 

Fire  insurance—  identity  —  ejectment  —  description. 

§  496.  Where  real  property  was  described  in  a  policy  of  fire  insur- 
ance, and  a  portion  of  the  description  was  false,  the  latter  portion  was 
rejected,  there  being  sufficient  remaining  to  satisfactorily  identify  the 
property  so  insured.4  Where,  in  an  action  of  ejectment,  the  plain- 
tiff claimed  under  a  deed  which  described  the  land  by  name,  as  "  all 
the  undivided  two-thirds  of  all  the  lands  known  by  the  name  of 
Rancho  de  San  Vicente,  situated  in  the  county  of  Los  Angeles  and 
State  of  California,"  and  then  added  a  particular  description  which 
was  erroneous,  it  was  held  that  the  deed  was  intended  to  convey 
two-thirds  of  the  whole  rancho,  however  erroneous  the  particular  de- 
scription might  be.5 

1  Wofford  v.  McKinna,  28  Tex.  45.  «  Hatch  v.  Ins.  Co.,  67  Cal.  122. 

9  Doll  v.  Feller,  16  Cal.  432.  8  Haley  v.  Amestoy,  44  Cal.  132. 

8  Garwood  v.  Hastings,  38  Cal.  216. 


IDENTITY  OF  HEAL  ESTATE.  343 

Description  —  when  sufficient  —  oral  testimony. 

§  497.  As  a  legal  proposition  the  description  of  real  estate  given 
in  a  deed  of  conveyance  is  sufficient  if  the  property  can  be  identified; 
and  to  aid  in  so  doing,  oral  testimony  is  always  admissible,  not  to 
make  a  new  contract,  but  to  explain  one  already  made.  Where  the 
plaintiff  brought  ejectment,  and  in  the  complaint  the  starting  point 
of  the  land  was  described  as  two  hundred  and  eight  chains,  twenty 
links  east  of  the  corner  to  township  1  and  2  north,  range  4  and  5  west, 
Mount  Diablo  meridian,  this  was  objected  to  for  want  of  certainty  in 
identifying  the  property.  A  witness  testified  that  he  was  a  surveyor 
and  made  a  map  of  the  land,  and  that  the  starting  point  mentioned 
in  the  complaint  was  definite,  and  that  there  could  be  but  one  such 
point.  The  description  was  held  sufficient.1  In  an  action  of  eject- 
ment for  a  lot  in  the  city  of  San  Jose,  of  a  lot  in  Pueblo,  described 
by  an  alcalde  as  "  Twenty-five  yards  in  front  by  fifty  in  depth, 
and  bounded  south-east  by  Chaifa  Garcia's  house  and  lot."  This 
was  held  to  be  vah'd,  and  conveyed  ownership  to  a  definite  tract  of 
land,  if  Chaifa  Garcia  occupied  a  lot  in  Pueblo,  and  a  lot  twenty-five 
by  forty  yards  could  be  located  immediately  north-west  of  hers.2 
This  seems  self-evident,  from  a  geographical  standpoint. 

Deed  —  construction  of  description. 

§  498.  In  an  action  in  California,  a  deed  of  the  land  in  controversy 
contained  a  call  which  referred  to  a  creek  "  running  from  San  Ra- 
fael to  the  bay  of  San  Francisco."  It  appeared  that  the  stream  above 
the  village  of  San  Rafael  was  a  running  stream  but  a  part  of  the 
year,  and  was  not  known  by  the  same  name  as  the  part  below ;  also, 
that  below  the  village,  the  stream  was  navigable  a  portion  of  the  dis- 
tance fromits  mouth.  The  stream  was  referred  to  in  another  por- 
tion of  the  deed  as  "  the  creek  running  from  San  E-afael  to  the  bay 
of  San  Francisco.  It  was  held  that  the  parties  making  the  deed  in- 
tended to  refer  to  the  portion  of  the  stream  below  San  Rafael  only 
and  that  a  straight  line  drawn  from  the  head  of  the  stream  to  its 
mouth  would  establish  a  base  line  for  a  right-angle  called  for  in  the 
deed.3 

Description  —  reference  to  another  deed. 

§  499.  In  another  California  case  it  was  held  that  where  a  deed 
conveying  a  large  number  of  lots  in  a  city,  states  about  the  number 

1  Sherman  v.  McCarthy,  57  Cal.  507.        *  Holloway  v.  Qalliac,  47  Cal.  474. 
And  see  Anderson  v.  Hancock,  61  id.  88.        3  Irwin  v.  Towne,  42  Cal.  326. 


344  THE  LAW  OF  IDENTIFICATION. 

of  lots  sold,  and  refers  to  another  deed  given  to  the  grantor  of  such 
other  deed,  and  the  names  of  the  parties  thereto,  it  was  a  sufficient 
identification  of  the  deed  referred  to,  to  incorporate  the  particular 
description  therein  contained  into  the  deed  given  ;  and  that  the  de- 
scription in  the  deed  given  is  not  vitiated  by  the  fact  that  the  deed 
referred  to  is  also  falsely  stated  to  have  been  recorded  in  the  county 
where  the  property  is  situated. 

What  is  a  sufficient  identification. 

§  500.  Where  a  piece  of  real  estate  was  described  in  a  deed  as  a 
piece  of  land  in  a  town,  lot  No.  62,  containing  fifty  and  fifty-two 
one-hundredth  acres  "  *  *  *  and  numbered  and  marked  on  the 
official  map  or  plan  as  outside  lands  of  the  town,  *  *  *  made 
by  "W.  H.  Norway,"  it  was  held  that  the  court  could  not  say,  as 
a  matter  of  law,  that  it  was  void  for  uncertainty  in  description  and 
identity.1  It  was  also  held  that,  where  a  piece  of  mining  property 
was  claimed,  a  conveyance  of  land  was  not  void  on  its  face  for 
uncertainty  in  description  of  the  property,  if,  so  far  as  can  be  seen 
from  the  description  itself,  the  points  named  as  boundaries  may  be 
well-known  monuments.2 

Survey  —  difficulty  in  identifying  lands. 

§  501.  A  question  of  identity  of  lands  was  raised  in  a  California 
case,  not  unusual  in  that  State ;  it  involved  the  calls  in  the  deed  of 
conveyance,  as  often  occurs,  and  the  difficulty  arose  in  the  attempt 
to  apply  the  description  in  the  deed,  to  the  land,  and  out  of  the  first 
and  third  lines.  The  starting  point  was  fixed  beyond  doubt  or  dis- 
pute. The  first  course  was  "  thence  in  a  south-easterly  direction 
forty  chains  more  or  less,"  and  of  course,  both  distance  and  course 
was  indefinite,  for  "  south-easterly "  may  be  any  course  between 
south  and  east,  and  there  may  be  "  more  or  less  "  than  forty  chains. 
And  upon  this  the  court  said :  "  If  a  fixed  monument  had  been  des- 
ignated, the  rule  would  be  to  run  to  it,  whether  the  distance  was 
more  or  less  than  the  number  of  chains  stated,  or  whether  the  course 
to  the  monument  varied  either  one  way  or  the  other  from  due  south- 
east. There  being  no  monument  named  at  the  termination  of  this 
call,  if  there  were  no  other  call  to  aid  it,  undoubtedly  the  survey 
would  run  due  south-east  forty  chains  and  stop.  But  there  were 
other  calls,  and  running  due  south-east  forty  chains,  the  course  and 
distance  could  neither  be  made  to  harmonize  with  the  other  calls,  if 

1  Thompson  v.  Thompson,  52  Cal.  155.          8  Meyers  v.  Farquharson,  46  Cal.  190. 


IDENTITY  OF  REAL  ESTATE.  345 

properly  identified,  or  inclose  any  land  at  all ;  the  second  call  was, 
1  thence  north  71C  15'  east  twenty-seven  chains  to  a  high  rock  and 
stone  on  a  low  hill.'  Now  here  was  an  exact  course  and  distance 
and  a  fixed  physical  call.  One  of  the  surveyors  said  that  by  finding 
the  rock  and  stones  designated  and  running  back  south  71°  15'  west 
twenty-seven  chains,  would  give  the  exact  terminus  of  the  first  line, 
which  should  be  run  thence  to  the  point  of  beginning,  and  that  sur- 
veyors so  find  the  true  line  from  the  description.  The  third  line, 
as  designated,  runs  '  thence  in  a  north-easterly  direction  sixty-six 
chains  to  a  road  leading,'  etc.  This  is  also  indefinite  as  to  course, 
and  if  the  line  were  run  due  north-east  the  given  distance,  the  call 
would  not  harmonize  with  the  other  calls,  or  inclose  any  land  ;  but 
it  is  apparent  from  the  testimony  of  the  surveyor,  that,  upon  princi- 
ples similar  to  those  already  indicated,  the  line  can  be  so  run  to  the 
road  as  to  fix  monuments,  and  with  reference  to  the  other  calls,  as  to 
harmonize  with  the  other  lines  and  inclose  the  land."*  This  is  but  a 
sample  of  the  loose  manner  in  which  surveys  are  often  made,  causing 
great  difficulty  in  the  identity  of  the  land. 

Description  of  land  —  plan  lost  —  identity  thereof. 

§  502.  An  action  of  ejectment  was  brought  by  Goldsborough 
against  Patton,  Smith  and  Morgan,  executors  of  Dr.  William  Smith, 
deceased,  in  1822,  to  recover  a  house  and  lot  in  Huntingdon,  marked 
No.  11,  and  which  deceased  had  deeded  in  his  life-time,  with  three 
other  lots,  to  his  daughter,  in  1783,  and  the  question  was,  whether 
this  was  one  of  those  lots  embraced  in  the  deed,  there  being  then  no 
recorded  plan  of  the  town.  Dr.  Smith  appeared  to  have  been  mis- 
taken in  referring  to  a  recorded  plan.  The  plan  was  presumed  to 
have  been  lost  and  never  recorded.  The  court  said :  "  In  that  case 
the  law  admits  parol  evidence  of  its  contents,  and  what  evidence 
could  be  more  proper  than  the  declarations  of  Dr.  Smith,  who  made 
the  deed,  and  was  proprietor  of  the  land  on  which  the  town  of  Hun- 
tingdon was  laid  out.  He  did  not  say  expressly  that  the  plan  re- 
ferred to  in  his  deed  was  in  his  possession,  but  he  said  that  the  lot 
No.  11  was  one  of  those  which  he  had  conveyed  to  his  daughter. 
It  was  very  proper  that  the  jury  should  have  this  evidence,  from 
which  they  might  draw  their  own  conclusions."2  The  evidence  of 
Dr.  Smith's  declarations,  if  favorable  to  his  own  interests,  would  not 
have  been  admissible  on  this  trial ;  but  the  declarations  being  made 

1  Moss  v.  Shear,  30  Cal.  468,  480.  3  Patton  v.  Goldsborough,  9  S.  &  R.  46. 

44 


346  THE  LAW  OF  IDEISTTIFICATION. 

subsequent  to  the  execution  of  the  deed  to  his  daughter,  were  against 
his  own  interest,  and  hence  admissible. 

Deed—  fifty  years  old  —  identity  of  grantor. 

§  503.  A  deed  of  land  after  a  lapse  of  fifty  years,  from  the  per- 
son whose  name  was  used  in  an  application  for  land  in  what  was 
then  Northumberland,  since  Westmoreland  county,  both  the  gran- 
tor and  grantee  being  described  as  of  the  city  of  Philadelphia,  and 
the  handwriting  of  the  grantor  being  proved,  though  possession  did 
not  accompany  the  deed,  and  there  was  a  short  adverse  possession, 
were  all  facts  allowed  by  the  trial  court  to  go  to  the  jury  for  their 
consideration  as  a  link  in  the  chain  of  title.  The  title  being  traced 
to  the  grantee,  described  in  the  deed  executed  to  him,  as  of  the  city 
of  Philadelphia,  a  copy  of  the  deed,  alleged  to  be  his,  being  offered 
in  evidence,  in  which  he  describes  himself  as  of  London  Grove, 
Chester  county,  whether  he  is  the  same  person  was  held  to  be  a  ques- 
tion of  fact  for  the  jury ;  that  the  possession  of  the  deed  by  his 
devisees  was  some  evidence  that  he  was  the  same  person.1 

Oral  testimony  —  latent  ambiguity. 

§  504.  Where  a  writing,  such  as  a  deed  or  other  writing,  which 
purports  to  convey  property,  fails  to  identify  it,  the  identity  of 
the  subject-matter  often  presents  a  most  difficult  question  for  the 
consideration  of  the  courts  and  juries.  This  question  was  presented 
in  a  case  decided  by  the  Supreme  Court  of  Pennsylvania  in  1858,  in 
which  WOODWARD,  J.,  said  :  "  But  when  the  writing  itself  refers 
to  a  subject-matter,  without  defining  it,  which  is  outside  of  the  in- 
strument, the  parties  must  expect  a  jury  to  be  employed  to  ascer- 
tain it,  under  the  directions  of  the  court,  always  jealous  of  evidence 
that  touches  a  written  instrument.  *  *  *  Latent  ambiguities 
may  be  explained  by  parol  in  order  to  identify  the  thing  intended 
to  be  conveyed,  but  not  to  make  a  new  contract,  or  to  convey  what 
the  parties  did  not  intend  to  convey."2 

Land  —  identity  of  boundaries  —  rule  in  Maine. 

§  505.  As  to  the  boundaries  of  land,  the  court  of  Maine,  in  1863, 
laid  down  the  rule  on  the  subject  as  follows  :  "  Where  there  are 
no  government  surveys,  what  are  the  boundaries  of  land  conveyed 

1  M'Gennis  v.  Allison,  10  S.  &  R.  197.     Hamilton  v.  Marsden,  6  id.  50;  Healy  v. 
Citing  Clark  v.  Sanderson.  3  Binn.  196;    Moul,  5  8.  &  R.  185. 
*  Hethorington  v.  Clark,  30  Pa.  St.  393. 


IDENTITY  OF  REAL  ESTATE.  347 

by  a  deed  is  a  question  of  law.  Where  the  boundaries  are,  is  a 
question  of  fact.  An  existing  line  of  adjoining  land  may  as  well  be 
a  monument  as  any  other  object.  And  the  identity  of  a  monument 
found  on  the  ground  with  one  referred  to  in  the  deed  is  always  a 
question  for  the  jury.  These  propositions  have  been  so  often  ap- 
plied in  real  actions,  that  no  citation  of  authorities  is  necessary  to 
sustain  them ;  and  upon  this  question  of  identity,  parol  evidence  is 
always  admissible."1 

Same  —  rule  in  California. 

§  506.  As  held  in  California  in  1854,  the  question  of  the  identity 
of  land,  as  well  as  possession,  is  for  the  jury.  An  action  was  brought 
to  recover  a  tract  of  land,  called  "  the  Pocket,"  and  an  injunction 
was  granted  to  restrain  waste.  Defendants  set  up  that  it  was  public 
land  and  that  they  had  complied  with  the  law  relating  to  public 
lands,  etc.  That  they  had  made  a  ditch.  The  difficulty  was  in  the 
exact  boundaries  of  the  land  in  controversy,  and-the  identification  of 
the  same,  and  the  court  held  that  it  was  a  question  of  fact,  to  be 
determined  by  the  jury  under  proper  instructions  from  the  court ; 
and  this  seems  to  be  the  general  rule.2 

Same  —  call  for  all  lines  —  for  the  jury. 

§  507.  Where  a  deed,  in  describing  the  land,  called  for  an  old  line 
"from  A.  down  the  bottom  with  Hill's  line  to  a  forked  white 
oak,"  and  it  was  uncertain  what  bottom  was  meant,  the  question  of 
identity  was  one  of  fact  for  the  jury.3  Where  laud  was  described 
in  a  will  as  the  "  Red  House  tract,"  the  limits  of  the  tract  being  left 
thus  indefinite,  it  became  necessary  to  identify  it ;  this  was  held  to 
be  a  question  of  fact  for  the  jury.  Whether  a  land  warrant  is  laid 
on  the  land  it  calls  for  is  also  a  question  of  fact.4 

Same  —  tax  deed  —  rule  in  Ohio. 

§  508.  In  the  State  of  Ohio  it  was  held  to  be  an  insufficient 
description  of  taxable  lauds,  to  say :  "  Cooper,  James,  5  acres, 
section  24,  T.  4,  F.  R.  1,"  and  that  a  deed  made  pursuant  to  such 
a  sale  for  taxes,  with  no  other  description,  was  void,  as  not  identi- 
fying the  land  sold ;  and  the  case  went  to  the  Supreme  Court  of 
the  United  States,  where  the  same  ruling  was  adopted.5  A  de- 

1  Abbott  v.  Abbott,  51  Me.  581.  (U.  S.)  76.     Citing  Massie's    Heirs  v. 

3  Hicks  v.  Davis,  4  Cal.  67.  Long,  2  Ohio,  287;  Treon  v.  Emerick,  6 
5  Hill  v.  Mason,  7  Jones  (N.  C.),  552.  id.  391;   Lafferty  v.   Byers,  5  id.  458. 

4  Cassidy  v.  Conway,  25  Pa.  St.  244.  See,  also,  Hannel  v.  Smith,  15  id.  134; 

5  Raymond   v.    Longworth,  14  How.  Smith  v.  Handy,  16  id.  214. 


348  THE  LAW  OF  IDENTIFICATION. 

fective  description  of  land  assessed  for  taxes  cannot  be  cured  by  the 
description  in  a  tax  deed,  nor  by  other  proof.  The  statute  must  be 
complied  with ;  the  land  must  be  identified,  as  the  deed  is  only 
prima  facie  evidence  of  title,  and  its  validity  depends  upon  a  com- 
pliance with  the  statute.1 

Same  —  land  sold  for  taxes  —  identification. 

§  509.  It  was  held  that  a  list  of  forfeited  lands,  furnished  by  the 
auditor  of  State  to  the  county  auditor,  for  sale,  must  be  authenti- 
cated by  his  official  seal,  and  signed  by  himself  or  his  chief  clerk, 
and  a  sale  of  such  lands  will  not  be  valid  unless  they  have  been  pre- 
viously listed  for  taxation  by  some  pertinent  description.2  An  ex- 
change of  land  in  Louisiana  is  an  executed  contract ;  it  operates  per 
se  as  a  reciprocal  conveyance  of  the  thing  given  and  the  thing  re- 
ceived. The  thing  given  or  taken  in  exchange  must  be  specific, 
and  so  distinguishable  from  all  things  of  the  like  kind  as  to  be  clearly 
known  and  identified.3 

Same  —  patent  — land  in  Virginia. 

§  510.  In  an  action  of  ejectment,  involving  certain  land  in  Vir- 
ginia, which  was  much  complicated  in  its  description  and  difficult  to 
identify,  it  was  held  by  the  Supreme  Court  of  the  United  States, 
that  if  the  grant  appropriate  the  land,  it  is  only  necessary  for  the 
person  claiming  under  it  to  identify  the  land  called  for ;  that  the 
entire  description  of  the  patent  must  be  taken,  and  the  identity  of 
the  land  ascertained  by  a  reasonable  construction  of  the  language 
used.  If  there  be  a  repugnant  call,  which,  by  the  other  calls  of  the 
patent,  clearly  appears  to  have  been  made  through  mistake,  that 
does  not  make  void  the  patent.  But  if  the  land  granted  be  so  inac- 
curately described  as  to  render  its  identity  wholly  uncertain,  the  grant 
will  be  void.4 

Same  —  Tennessee  lands  —  North  Carolina  laws. 

§  511.  In  Tennessee,  the  courts  of  law,  construing  the  land  laws 
of  North  Carolina,  permitted  the  parties  in  ejectment  to  go  back  to 
the  original  entry  and  connect  the  patent  with  it.  Notoriety  was  not 
essential,  as  it  was  in  Kentucky.  The  statute  of  Virginia  was  the 
land  law  of  Kentucky,  and  required  that  entries  should  be  so  special 
and  certain  that  any  subsequent  locator  should  know  how  to  appro- 

1  Turney  v.  Yeoman,  16  Ohio,  24.  4  Boardman  v.   Lessees  of  Reed  and 

•  Hannel  v.  Smith,  15  Ohio,  184.  Ford,  6  Pet.  828. 

»  Preston  v.  Keene,  14  Pet.  188. 


IDENTITY  OF  REAL  ESTATE.  349 

priate  the  adjoining  residuum.  But  the  land  laws  of  North  Carolina 
contained  no  such  provision,  and  the  doctrine  which  required  noto- 
riety as  well  as  identity  was  never  received  in  Tennessee.1  And  in 
Ohio,  in  1819,  so  far  as  it  related  to  {he  question  of  identity,  a  de- 
scription which  would  identify  it  would  validate  the  grant.2 

Patent  —  lands  —  mistake  —  jurisdiction. 

§  512.  As  a  general  rule,  where  lands  are  involved  in  suit,  which 
have  been  granted  by  the  United  States,  and  the  patent  is  involved, 
the  Supreme  Court  of  the  United  States  has  jurisdiction.  But  it 
was  held  that  error  would  not  lie  to  a  State  court  where  the  issue 
was  solely  upon  the  identity  of  the  person  to  whom  the  record  of 
land  titles  conferred  or  intended  to  be  confirmed,  certain  lands  as, 
e.  g.,  whether  when  confirmed  in  the  name  of  A.  B.,  it  did  not  mean 
C.  B.,  and  this,  though  both  claim  title  to  the  same  land  under  the 
Federal  government.3 

Deed  to  father  —  instead  of  son  —  rule  in  Vermont. 

§  513.  Where,  in  a  recent  Yermont  case,  finally  decided  in  1861,  a 
father  and  sou  being  both  named  D.  F.,  the  father  purchased  a  tract 
or  parcel  of  land,  taking  the  deed  to  D.  F.,  Jr.,  describing  him  as 
of  the  town  where  both  of  them  resided ;  and  himself  executed 
promissory  notes  for  part  of  the  purchase-money,  i.  e.,  the  de- 
ferred payments,  and  a  mortgage  on  the  land  to  secure  the  pay- 
ment of  the  same,  by  and  in  the  name  of  D.  F.,  Jr.,  and  said  noth- 
ing of  acting  as  agent  for  his  son,  and  the  grantor  supposing  the 
father  was  in  fact  the  purchaser,  that  his  name  was  D.  F.,  Jr.,  and 
that  he  was  deeding  the  land  to  the  father.  Some  of  the  evidence 
in  the  case  tended  to  show  that  the  sou  had  authorized  the  father  to 
purchase  the  land  in  his,  the  son's,  name,  and  that  he  paid,  directly 
or  indirectly,  the  whole  of  the  purchase-money.  It  was  held  that 
the  question  was  one  of  fact  to  be  determined  by  the  jury.4 

Deed  —  alleged  forgery  —  rule  in  Vermont. 

§  514.  Another  case  in  the  same  State,  decided  in  the  same  year 
(1861),  the  defendant  in  the  action  offered  in  evidence  a  copy  of  a  deed 
which  plaintiff  had  introduced,  purporting  to  be  dated  on  May  24, 
1807,  which  was  in  fact  the  day  of  the  date  of  the  defective  deed 
which  plaintiff  had  introduced,  between  the  same  parties  and  sub- 

1  Blunt's  Lessee  v.  Smith,  7  Wheat.        3  Carpenter  v.  Williams,  9  Wall.  785. 
248  (1822).  4  Prentiss  v.  Blake,  34  Vt.  460. 

2  M' Arthur  v.  Browder,  4  Wheat.  488. 


350  THE  LAW  OF  IDENTIFICATION. 

stantially  identical,  at  least  in  terms,  with  the  defective  deed,  but 
which  was  not  recorded  until  1856,  and  the  plaintiff  claimed  it  was 
a  forgery.  It  was  held  that  the  copy  of  the  deed  was  properly  ad- 
mitted, and  that  the  question  of  the  genuineness  of  the  original  deed 
was  a  question  of  fact,  not  of  law,  to  be  determined,  not  by  the  court, 
but  by  the  jury.1  In  all  matters  of  this  nature,  when  the  identity 
of  either  the  grantor  or  grantee  becomes  a  question  in  issue,  the 
court  cannot  decide  it,  but  must  submit  the  question  to  the  jury,  be- 
cause it  is  a  question,  not  of  law,  but  of  fact.  And  where  a  written 
instrument,  such  as  bonds,  bills,  notes,  deeds,  wills,  mortgages  and 
the  like,  are  offered  in  evidence,  their  admissibility  as  evidence  is  a 
question  of  law,  to  be  determined  by  the  court.  But  when  admitted 
by  the  court,  the  weight  of  such  evidence,  as  also  the  proof  of  the 
fact  for  which  it  is  introduced,  is  for  the  jury,  under  proper  in- 
structions by  the  court. 

Acknowledgment  —  what  complies  with  the  statute. 

§  515.  In  all  deeds,  mortgages  or  other  conveyances,  it  is  necessary 
to  identify  the  premises  intended  to  be  conveyed.  And  it  often  oc- 
curs that  the  description  as  given  in  the  instruments  is  so  vague,  un- 
certain and  indefinite  as  to  require  the  aid  of  oral  testimony  to  as- 
certain and  identify  it.  While  this  is  important,  it  is  equally  im- 
portant to  identify  the  grantor.  This  is  done,  to  an  extent  which  is 
generally  satisfactory,  by  the  certificate  of  acknowledgment.  In 
this  the  statutes  of  most  of  our  States  require  the  certificate  of 
acknowledgment  to  state  that  the  grantor  is  known  to  the  officer 
making  it,  and  thus  he  is  identified,  so  far  as  this  evidence  may  go. 
This  is  to  prevent  fraud ;  it  is  for  the  safety  and  protection  of  the 
grantee.2  The  United  States  Supreme  Court  held  that  a  magistrate's 
certificate  attached  to  a  deed  of  land  in  Illinois,  that  on  the  27th 
day  of  May,  1856,  personally  came  C.  L.  and  W.  H.,  her  husband, 
"  known  to  me  to  be  the  persons  who  executed  the  foregoing  in- 
strument, and  acknowledged  the  same  to  be  their  act  and  deed," 
was  equivalent  to  stating  that  they  came  before  the  officer,  and  were 
personally  known  to  him  to  be  the  real  persons  who  subscribed  the 
deed,  and  in  this  respect  complied  with  the  requirements  of  the 
statute  of  the  State  of  Illinois  then  in  force.3 

1  Pratt  v.  Battles,  34  Vt.  391.  3  Schley  v.  Pull.   Car  Co.,  120  U.  S. 

9  Smith    v.    Garden,    28    Wis.    685;    575. 
Schley  v.  Pull.  Car  Co.,  120  U.  8.  675; 
Livingston  v.  Kettelle,  1  Oilm.  116. 


IDENTITY-  OF  REAL  ESTATE.  351 

Same  —  same  —  rule  on  the  subject. 

§  516.  The  Supreme  Court  of  the  United  States,  in  deciding  a 
case  from  Tennessee,  says  the  laws  of  Tennessee  prescribe  a  formula 
for  the  acknowledgment  of  deeds :  "  Personally  appeared  before  me 

*  *  *  the  within-named  bargain  or,  with  whom  I  am  per- 
sonally acquainted,  and  who  acknowledged  that  he  executed  the 
within  instrument  for  the  purposes  therein  contained."  The  court 
held  that  the  certificate  of  an  officer  taking  the  acknowledgment  of 
the  grantor  in  a  deed  of  trust,  in  which  the  officer  certifies  that  said 
grantor  is  "  personally  known  "  to  him,  is  a  compliance  with  the 
statute.1  But  it  will  be  seen  that  the  State  courts  have  been  more 
strict  in  their  construction. 

Same  —  certificate  —  when  fatally  defective  —  rule  in  "Wisconsin. 
§  517.  In  a  Wisconsin  case  involving  the  same  question,  it  ap- 
peared that  the  statute  in  force  required  the  officer  taking  the 
acknowledgment  of  a  deed  or  other  instrument  to  certify  that  the 
grantor  was  known  to  him,  or  that  his  or  her  identity  had  been 
satisfactorily  proved.  It  was  held  that  a  deed  purporting  to  be  made 
by  D.  W.  and  C.  L.  W.,  his  wife,  the  certificate  merely  stating 
that  D.  "W.,  the  party  grantor  in  the  within  instrument,  personally 
appeared  and  acknowledged  the  same  to  be  his  act  and  deed,  and  at 
the  same  time  personally  appeared  C.  L.  W.,  the  wife  of  said  D."W., 
and  acknowledged,  etc.,  was  fatally  defective,  and  not  a  compliance 
with  the  statute.  Neither  of  the  parties  were  shown  by  the  certifi- 
cate to  have  been  personally  known  to  the  officer,  or  their  identity 
proved.2  And  the  same,  or  similar  rule  was  held  by  the  Supreme 
Court  of  Illinois,  that  an  acknowledgment  of  a  deed,  the  certificate 
of  which  was  a  blank  space,  where  the  word  "  known  *'  usually  ap- 
pears in  the  clause  "  who  is  personally  known  to  be  the  real  person," 
etc. ,  is  fatally  defective,  because  such  certificate  fails  to  identify  the 
grantor  in  the  deed."8 

Identity  of  land  —  mistake  in  numbers. 

§  518.  In  a  recent  case  in  Iowa,  a  bill  was  filed  to  foreclose  a 
mortgage.  It  was  shown  that  the  plaintiff's  husband  conveyed  the 
land  in  question  by  his  proper  name  and  that  a  person  of  that  name 
previously  acquired  the  title  thereto.  It  was  presumed  that  they  were 
the  same  person.  And  in  an  action  to  foreclose  a  mortgage  on  a 

»  Kelly  v.  Calhoun,  95  U.  S.  710.  *  Tally  v.  Davis,  30  111.  103. 

2  Smith  v.  Garden,  28  Wis.  685. 


352  THE  LAW  OF  IDENTIFICATION. 

quarter-section  of  land  the  defendant  claimed  dower  in  the  east  half 
of  it ;  her  claim  was  allowed  in  the  decree,  but  the  evidence  showed 
that  her  husband  had  owned  the  west  half  only ;  but  since  the  decree 
provided  for  the  sale  of  the  whole  tract,  and  for  the  reservation  out 
of  the  proceeds  of  the  value  of  defendant's  dower  interest,  which  was 
not  affected  by  the  mistake  —  the  east  and  west  halves  being  of 
equal  value  —  the  mistake  was  held  to  be  no  ground  to  reverse  the 
decree,  and  that  there  was  no  ground  for  rendering  judgment  against 
plaintiff  or  in  favor  of  defendant  for  the  value  of  the  dower  interest, 
but  only  for  costs,  and  the  error  was  corrected,  and  the  decree  ac- 
cordingly modified  and  affirmed.1 

Description  of  land —  identity  by  survey  —  rule  in  Ohio. 

§  519.  The  Supreme  Court  of  Ohio,  in  1858,  in  the  interpretation 
of  surveys  to  identify  lands  intended  to  be  conveyed  in  a  certain 
deed,  SWAN,  C.  J.,  delivering  the  opinion  of  the  court,  said: 
"  Where  an  original  survey  has  been  made  by  the  true  meridian,  and 
contracts  and  deeds  are  made  and  executed  for  parts  of  such  survey, 
calling  for  and  adopting  the  calls  of  parts  of  the  original  survey, 
with  its  lines  in  the  description,  it  is  clear  that  such  calls  of  the 
original  courses  mean  the  true  meridian ;  and  if  the  contracts  or 
deeds  thus  made  call  for  courses  originally  surveyed  by  the  magnetic 
meridian,  it  is  equally  true  and  clear  that  such  calls  mean  the 
magnetic  meridian.  In  the  subdivision  lines  and  in  contracts  of 
sale  and  deeds  for  parts  of  sections  originally  surveyed  by  the  true 
meridian,  subdivision  lines,  having  no  reference  to  the  original  lines, 
would,  in  general,  be  surveyed  by  the  magnetic  meridian,  as  such  is 
the  usual  mode  of  surveying  lands  in  all  parts  of  the  State.  It  is 
manifest  from  all  this,  that,  in  respect  to  the  surveys  in  this  State, 
'  west '  and  '  due  west '  in  one  class  of  original  surveys,  means  a  line 
at  a  right  angle  to  the  true  meridian  ;  and  in  another  class  '  west '  or 
'due  west'  is  west  according  to  bearings  of  the  surveyor's  compass 
at  the  time  of  the  original  survey.  In  giving,  thus,  our  interpreta- 
tion of  these  words,  a  fixed,  determinate,  judicial  construction  cannot 
be  adopted,  and  their  meaning  must  frequently  depend  upon  and  be 
controlled  by  extraneous  facts.  In  the  case  before  us,  the  fact  that 
the  original  section  was  owned  in  common  ;  that  the  calls  of  the 
course  of  the  original  surveys  were  for  the  true  and  magnetic  merid- 
ian ;  that  the  original  purchases  from  the  government,  or  their  rep- 
1  Oilman  v.  Sheets,  78  Iowa,  499. 


IDENTITY  OF  REAL  ESTATE.  353 

resentatives,  in  using  the  words  '  due  west '  were  or  were  not  doing 
so  with  a  view  to  a  subdivision  of  the  section  between  them,  and 
with  reference  to  the  original  courses,  were  proper  subjects  of  in- 
quiry and  consideration  for  the  jury,  under  directions  of  the  court, 
to  determine  the  disputed  lines."1 

Description  of  land  —  identification  —  rule  in  Maine. 

§  520.  The  question  of  the  description  of  land  for  the  purpose  of 
identifying  the  same  arose  in  a  case  decided  by  the  Supreme  Court 
of  Maine  in  1863.  That  court,  in  disposing  of  this  branch  of  the  case, 
merely  laid  down  a  rule  briefly  as  follows :  "  What  the  boundaries 
of  land  conveyed  is  a  question  of  fact.  An  existing  line  of  an  ad' 
joining  tract  may  as  well  be  a  monument  as  any  other  object,  and 
the  identity  of  a  monument  found  upon  the  ground  with  one  referred 
to  in  the  deed  is  always  a  question  for  the  jury.  These  propositions 
have  been  so  often  applied  in  real  actions,  that  no  citation  of  authority 
is  necessary  to  sustain  them.  And  upon  this  question  of  identity 
parol  evidence  is  admissible."2  The  same  court,  as  early  as  1836,  in 
a  case  of  some  importance,  and  in  a  well-considered  opinion,  held 
substantially  the  same  rule  that  we  have  just  seen  announced  in  the 
above  cases,  to  the  effect  that  where  a  stake  or  stone  is  referred  to, 
as  a  monument,  in  a  deed  or  in  a  levy,  parol  proof  is  admissible  to 
show  the  location.3 

Description  of  land  —  identity  —  rule  in  Massachusetts. 

§  521.  The  Supreme  Court  of  Massachusetts,  in  1832,  held  that 
where  in  the  conveyance  of  land  a  description  is  given,  which  has 
not  acquired  a  fixed  legal  construction,  or  a  boundary  is  referred  to, 
which  is  variable,  parol  evidence  is  admissible  for  the  purpose  of  as- 
certaining the  meaning  and  proper  construction  of  the  deed  and  the 
identity  of  the  land.4  And  the  contract  for  the  conveyance  of  land? 
says  the  court  of  Illinois,  will  not  fail  for  want  of  the  proper  identi- 
fication of  the  premises  intended  to  be  conveyed ;  and  it  will  be  held 
valid,  if  the  land  is  sufficiently  identified  as  to  enable  a  surveyor  to 
locate  it.5  In  Massachusetts  a  case  arose  involving  this  question,  de- 
cided in  1845.  The  land  was  described  in  different  deeds  as  bounded 
"on  the  mountain"  and  "by  the  mountain"  and  "the  foot  of  the 
mountain."  It  was  held  that  the  words  were  too  indefinite  and  un- 

1  McKinney  v.  McKinney,  8  Ohio  St.        3  Wing  v.  Burgis,  13  Me.  111. 

426.  4  Waterman  v.  Johnson,  13  Pick.  261. 

2  Abbott  v.  Abbott,  51  Me.  581.  5  White  v.  Hermann,  51  111.  243. 

45 


354  THE  LAW  OF  IDENTIFICATION. 

certain  to  identify  the  land  by  controlling  the  courses,  distances  and 
other  references  in  the  deed,  descriptive  of  the  land ;  that  it  was  a 
mixed  question  of  law  and  fact  what  part  of  the  mountain  was  in- 
cluded, and  that  this  was  a  question  for  the  jury  to  determine  and 
to  ascertain  the  proper  boundary.1 

Identity  of  land  sold  for  taxes. 

§  522.  In  Pennsylvania,  in  1794,  a  tract  of  four  hundred  acres  of 
land  was  warranted,  as  it  was  called,  in  the  name  of  "  Daniel  Krit- 
ler,"  and  surveyed  as  four  hundred  and  sixty  acres.  It  was  assessed 
in  Frankstown  (cut  off  from  Woodbury)  till  1 846,  in  the  name  of 
"  Daniel  Kladder,"  and  the  taxes  paid  by  owner.  Blair  township  was 
afterward  erected  from  Frankstown,  and  the  tract  continued  to  be 
assessed  in  Blair  in  the  name  of  "  Kritler,"  the  owner  still  paying 
the  taxes.  After  1846,  a  tract  of  three  hundred  and  twenty  acres 
was  assessed  in  Frankstown  in  the  name  of  "  Kladder,"  and  another 
tract  of  two  hundred  and  thirty  acres  in  the  same  name  in  Huston, 
which  had  been  cut  off  from  Woodbury.  The  two  hundred  and 
thirty  acres  in  Frankstown  were  sold  for  taxes.  The  purchaser  en- 
tered on  the  tract  in  Blair,  claiming  that  it  was  the  one  he  had  pur- 
chased. It  was  held  that,  as  a  matter  of  law,  there  was  no  evidence 
of  identity  of  the  Frankstown  three  hundred  and  twenty  acres  with 
the  Blair  tract,  and  it  was  a  mere  question  of  identity.2  The  evi- 
dence necessary  to  identify  land  does  not  differ  essentially  from 
that  required  to  identify  personal  property  or  other  things,  except 
in  case  of  disputed  boundary  lines,  when  actual  measurement  or 
survey  becomes  necessary.  Where  an  agent  or  trustee  invests  a  trust 
fund  in  real  estate  and  takes  title  to  himself,  the  cestui  que  trust  or 
beneficiary  may  trace  the  fund  into  the  property  ;  then  it  will  be- 
come necessary  to  identify  both  the  fund  and  the  property, 

Misdescription  of  land  —  decree  —  sale. 

§  523.  The  effect  of  a  misdescription  in  a  decree  and  notice  of  a 
sale  of  land  was  adjudicated  in  Wisconsin  in  1875.  The  decree 
directed  the  sale  of  certain  mortgaged  premises  mentioned  in  the 
bill  of  complaint  (in  which  the  land  was  correctly  described),  but  at 
the  close  of  the  decree  the  premises  were  incorrectly  described  as 
the  "  north-east  "  quarter,  instead  of  the  "  south-east  "  quarter  of  a 

1  Williston  v.  Morse,  10  Mete.  (Mass.)  128.  Citing  Phila.  v.  Miller,  49  Pa.  St. 
17.  440;  Lyman  v.  Phila.,  56  id.  488;  Glass 

9  Brotberline  v.  Hammond,  69  Pa.  St.     v.  Gilbert,  58  id.  266. 


IDENTITY  OF  REAL  ESTATE.  355 

section.  The  sheriff  advertised  and  offered  for  sale  the  "  north-east " 
quarter,  and  his  report  of  the  sale  was  confirmed,  and  judgment 
rendered  against  the  mortgagor  for  a  deficit.  It  was  held  that  the 
decree  was  merely  void,  could  be  amended  by  correcting  the  mistake, 
and  the  land  could  be  resold  under  it  as  amended.1 
1  Seeley  v.  Manning,  37  Wis.  574. 


CHAPTEE  XIII. 


IDENTIFICATION  OF  PERSONAL  PROPERTY. 


SEC.  SEC. 

534.  Personal  property  —  chattel  mort-     554. 
gage. 

525.  Same — description — rule  in  Massa-    555. 

chusetts. 

526.  Same  —  two    mortgages    on    one     556. 

horse. 

527.  Same  —  mortgage  on  two  mules  —    557. 

description. 

528.  Same  —  one  black  mule  —  rule  in    558. 

Alabama. 

529.  Description  of  mare  —  constructive    559. 

notice. 

530.  Variance — description  of  a  mule —    560. 

horses  and  oxen. 

531.  Identity  of  cattle  —  age  —  rule  as    561. 

to  description. 

532.  Stock  of  goods  —  description  of.         562. 

533.  Same  —  description  —  goods  — gro-    563. 

ceries. 

534.  Same  —  misdescription  —  surplus-    564. 

age. 

535.  Same  —  portable  steam  engine.          565. 

536.  Deed  in  trust  —  crop  of  cotton  — 

description.  566. 

537.  Indefinite  mortgage  —  mixed  logs 

—  wagon.  567. 

538.  Description  —  furniture  — wheat — 

oxen.  568. 

539.  Same — staves — stock  and  chattels. 

540.  Chattel  mortgage  —  goods  in  shop.     569. 

541.  Larceny — cattle — marks — brands. 

542.  Same — hog — identity  of  hog   and    570. 

prisoner. 

543.  Larceny — treasury  notes — instruc-     571. 

tions  as  to  identity. 

544.  Receiving  stolen  goods — produced    572. 

in  court. 

545.  Robbery — money  and  watch — rule    573. 

in  England. 

546.  Burglary  —  carriage    heard  —  bad    574. 

spelling. 

547.  Same  —  possession  of  horse  —  va-    575. 

riance.  576. 

548.  Robbery  —  identity  —  evidence  of 

accomplices.  577. 

549.  Larceny  —  cattle  —  brand  —  iden- 

tity. 578. 

550.  Larceny — cattle  and  horses — pos- 

session —  identity.  579. 

551.  Identity  of  stolen  goods  and  box. 

552.  Same  —  stolen    cow  —  identity  of    580. 

accused. 

653.  Bank    robbery  —  identity    by  the 
voice. 


Confession  in  jail — identity  by  the 
voice. 

Burglary  —  evidence  of  identity — 
rule  in  Iowa. 

Identity  of  horse  thief  —  rule  in 
Texas  —  yeast  can. 

Larceny  by  millers  —  English  and 
American. 

Larceny  of  trunk  and  money  — 
identity  of  money. 

Money — metallic — identification  of 
it  —  difficulty. 

Same  —  currency  —  bank  notes  — 
identity  of. 

Same  —  indictment  for  uttering 
counterfeit  coin. 

Articles  —  goods  —  how  identified. 

Same  —  knowledge  or  opinion  — 
reason. 

Same  —  articles  —  appearance  — • 
marks. 

Same  — questions  of  identity — ap- 
pearance —  mistake. 

Larceny  of  paper  money  —  iden- 
tity —  presumption. 

Larceny  —  goods — mistaken  iden- 
tity of  goods. 

Bank  notes  —  non  production  — 
parol  testimony. 

Same — goods  —  receiving  stolen — 
non-production. 

Larceny  —  identity  of  goods  and 
owner. 

Same — extent  of  ownership — iden- 
tity. 

Indictment  —  larceny— description 

—  name  of  owner. 

Chattels  —  cards  in  court — inspec- 
tion. 

Dog  in  court  for  identification  — 
premises. 

Machine  for  inspection — and  a  dog. 

Chattels  in  court  for  identification 

—  rule  in  England. 
Inspection  —  portable    goods    in 

court. 

Comparison  of  articles  —  in  and 
out  of  court. 

Damages  —  machinery  —  in  court 
to  identify. 

Belief  of  facts  —  according  to  evi- 
dence. 


IDENTIFICATION  OF  PERSONAL  PROPEKTY.  357 

Personal  property  —  chattel  mortgage. 

§  524.  As  to  the  identity  of  chattels,  it  is  said  by  Mr.  Jones  in  his 
valuable  work  on  Chattel  Mortgages,  §  54 :  "  The  description  need 
not  be  such  as  would  enable  a  stranger  to  select  the  property.  A 
description  which  will  enable  third  persons,  aided  by  inquiries,  which 
the  instrument  itself  suggests,  to  identify  the  property,  is  sufficient."1 

It  is  held  in  Iowa  that  a  description  in  a  chattel  mortgage  which 
will  enable  third  persons,  aided  by  inquiries  which  the  instrument 
itself  indicates  and  directs,  to  identify  the  property  covered  by  it,  is 
sufficient.  This  was  in  an  action  to  recover  thirty-one  head  of  work 
oxen  ;  the  plaintiffs  claimed  title  under  a  mortgage  executed  by  one 
R.  C.  Durham,  October  7,  1865,  to  them,  to  secure  a  debt  of  $1,750, 
and  in  this  the  question  of  identity  arose,  and  the  court  held  as 
above.2 

Same  —  description  —  rule  in  Massachusetts. 

§  525.  A  party  in  Massachusetts  in  1856  executed  a  chattel  mortgage, 
conveying  the  following  personal  property,  to-wit :  "  One  bay  mare, 
one  cow,  one  chaise  and  harness,  one  sleigh,  robes  and  harness,  one 
saddle  and  bridle,  all  the  farming  tools  and  other  personal  property 
in  and  about  the  barn  and  premises  at  Herbert  Hall ;  all  the  furni- 
ture, and  all  the  articles  of  personal  property  in  and  about  Herbert 
Hall,  so  called."  A  family  carriage  belonging  to  the  grantor  was 
held  to  pass  by  the  mortgage  when  on  the  premises  aforesaid,  at  the 
time  of  the  execution  of  the  mortgage,  and  evidence  that  the  mort- 
gagor, immediately  afterward,  pointed  out  the  carriage  to  the  mort- 
gagee as  included  in  the  mortgage,  was  competent  evidence  to 
identify  it.3 

Same  — two  mortgages  on  one  horse. 

§  526.  In  Iowa,  there  were  two  mortgages  on  one  horse,  and  in  a 
contest  as  to  the  right  of  the  property,  the  holder  of  the  second 
mortgage  insisted  that  the  record  of  the  first  was  insufficient  to  im- 
part constructive  notice  to  him,  because  the  horse  was  improperly 
described  in  the  plaintiff's  mortgage,  in  respect  to  his  color.  In  the 
plaintiff's  mortgage  he  was  described  as  a  brown  color  ;  in  the  other 

1  Jones   Chat.    Mort.,    §    54.    Citing  »  Smith  v.  McLean,  24  Iowa,  323. 

Winter    v.  Landphere,   42  Iowa,   471;  3  Qoulding  v.    Swett,   13  Gray,  517. 

Smith  v.   McLean,  24  id.  322  ;  Yant  v.  Citing  Winslow  v.  Ins.  Co.,  4  Mete.  306; 

Harvey,  55  id.  421;  Jordan  v.  Bank,  11  Harding  v.  Coburn,  12  id.  333;  Lawrence 

Neb.  499;  Connally  v.  Spragins,  66  Ala.  v.  Evans,  7  Ohio  St.  194;  Eddy  v.  Cald- 

258;  Lawrence  v.   Evarts,   7  Ohio  St.  well,  7  Minn.  225. 
194;  Tiudall  v.  Wasson,  74  Ind.  495. 


358  THE  LAW  OF  IDENTIFICATION. 

he  was  described  as  a  black  horse  ;  the  evidence  was  conflicting,  and 
ROTHKOCZ,  J.,  said:  "As  we  are  required  to  determine  this 
question  upon  the  preponderance  of  this  evidence,  we  think 
that  if  the  defendant,  at  the  time  he  took  his  mortgage,  had  taken 
the  description  contained  in  the  plaintiff's  mortgage,  and  gone  to 
the  farm  named  therein,  as  the  place  where  the  mortgaged  prop- 
erty was  kept,  and  made  inquiry,  he  would  have  learned  that  the 
horse  in  question  was  covered  by  plaintiff's  mortgage.  When 
the  description  in  a  chattel  mortgage  is  correct  as  far  as  it 
goes,  but  fails  fully  to  point  out  and  identify  the  property  intended 
to  be  conveyed,  a  subsequent  purchaser  or  incumbrancer  is  bound 
to  make  every  inquiry  which  the  instrument  itself  could  reasonably 
be  deemed  to  suggest."1 

Same  —  mortgage  on  two  mules  —  description. 

§  527.  A  mortgagee  in  Indiana  brought  his  action  to  recover  pos- 
session of  two  mules  held  by  the  mortgagor,  and  in  his  complaint 
described  them  as  "  two  brown  female  mules."  The  answer  set  up 
that  the  only  claim  the  plaintiff  had  was  founded  upon  a  chattel 
mortgage  conveying  "  two  mule  colts,  one  year  old  next  spring," 
and  no  other  description  was  given.  It  was  held  that  a  description 
in  a  chattel  mortgage  which  will  enable  third  persons,  aided  by  in- 
quiries which  the  instrument  itself  indicates  and  directs  to  identify 
the  property,  is  sufficient,  and  that  parol  evidence  was  admissible  to 
identify  the  particular  property  described  in  the  mortgage,  that  is, 
parol  evidence  may  aid,  not  make  a  description  in  such  a  mortgage.2 

Same  —  one  black  mule  —  rule  in  Alabama. 

§  528.  In  an  action  in  Alabama,  the  chattel  mortgage  described 
the  property  as  "  one  black  mule  about  eight  years  old."  It  was 
held  that  when  those  words  are  used,  without  more,  in  describing 
the  animal,  they  are  not  so  general  and  indefinite  as  to  render  the 
mortgage  void,  nor  to  exclude  it  as  evidence  of  notice  when  prop- 
erly recorded  ;  that  such  a  general  description  may  be  rendered  more 
certain  when  read  in  the  light  of  the  circumstances  surrounding  the 
parties  at  the  time  the  instrument  was  executed,  and  it  was  sufficient 
when  recorded  to  excite  the  inquiry  of  strangers  dealing  with  the 
mortgagor,  and  thus  to  charge  them  with  notice  of  the  incumbrance.3 

1  Yant  v.  Harvey,  55  Iowa,  421.     Cit-  McCord  v.  Cooper,  30  id.  9;  Ebberle  v. 

ing  Smith  v.  McLean,  24  id.  822.  Mayer,  51  id.  285;  Smith  v.  McLean,  24 

'Tindall   v.    Wasson,   74  Ind.    495.  Iowa,  822. 
Citing  Duke  v.  Strickland,  43  id.  494;        3  Connally  v.  Spragins,  66  Ala.  258. 


IDENTIFICATION  OF  PERSONAL  PROPERTY  359 

Description  of  mare  —  constructive  notice. 

§  529.  A  chattel  mortgage  was  intended  to  convey  a  mare, 
described  in  the  instrument  as  having  "  four  white  legs,"  when  in 
fact  she  had  but  one  white  foot  to  the  pastern  joint,  and  there  was 
a  little  white  on  another  foot.  It  was  held  that  the  description  was 
not  sufficient  to  make  the  recording  of  the  mortgage  constructive 
notice.  But  it  was  held  that  in  such  case  it  would  be  competent  to 
show  by  evidence  aliunde  that  the  mare  in  controversy  was  the  one 
mortgaged,  together  with  such  facts  and  circumstances  as  would 
tend  to  show  the  ability  of  the  adverse  party  claimant,  aided  by  in- 
quiry whichthe  mortgage  itself  indicated,  to  identify  the  mare.1  An 
action  of  replevin  was  brought  by  Aultman  &  Co.  against  King,  to 
recover  possession  of  a  certain  mare,  described  as  follows  :  "  One 
bay  mare,  one  hind  foot  white,  and  white  spot  in  face,  branded  *  G,' 
seventeen  hands  high,  five  years  old,  formerly  the  property  of  John 
Hamerberg."  It  was  held  that  as  the  description  applied  to  the 
mare  in  controversy  in  so  many  particulars,  and  not  applying  to  any 
other  animal,  the  description  was  not  void,  and  although  partially 
untrue,  did  not  render  the  mortgage  void  in  any  respect.  The 
brand  was  "  J  "  instead  of  "  G,"  and  the  mare  fifteen  and  three- 
fourths  hands  high  instead  of  seventeen.  In  Michigan,  a  chattel 
mortgage  was  held  to  be  sufficient  where  it  conveyed  all  the  cattle, 
consisting  of  two  yoke,  aged  six  and  seven  years,  color  "  red,  white 
and  blue,"  *  *  *  and  all  other  property  now  in  our  possession 
in  or  about  said  village,  etc.,  and  that  full  description  need  not  ap- 
ply, as  to  the  color,  to  each  one  of  the  cattle,  i.  e.,  it  was  not  neces- 
sary that  each  one  should  be  "  red,  white  and  blue."2 

Variance  —  description  of  a  mule  —  horses  and  oxen. 

§  530.  It  was  held  in  Alabama  in  1887,  that  where  an  animai  was 
conveyed  by  a  chattel  mortgage  and  described  as  a  "  black  mare 
mule,"  while  the  one  sued  for  was  described  by  the  witnesses  as  a 
"  dark  mouse-colored  mare  mule,"  or  a  "  mouse-colored  mare  mule ; " 
the  variance  was  not  so  great  as  to  render  the  mortgage  inadmissible 
as  evidence ;  but  the  question  of  identity  was  one  for  the  jury.  In 
this  case  the  mule  was  mortgaged,  and  finally  sold  under  the  mort- 
gage, or  under  an  execution,  and  the  rights  of  the  claimant  arose, 
and  in  this  was  involved  the  question  of  identity,  and  the  court  held 

1  Rowley  v.  Bartholomew,  37  Iowa,  374.  Farwell  v.  Fox,  18  id.  169;  Willey  v. 
Citing  Smith  v.  McLean,  24  id.  322.  Snyder,  34  id.  60. 

9  Fordyce  v.  Neal,  40  Mich.  705.  Citing 


S60  THE  LAW  or  IDENTIFICATION. 

as  above  stated.1  And  in  Minnesota,  in  a  case  decided  in  1889,  it 
was  held  that  evidence  that  a  person  had  purchased  from  a  mort- 
gagor two  red  oxen  five  years  old,  and  one  black  ox  five  years  old, 
is  not  sufficient  to  identify  the  oxen  purchased  with  those  bearing 
that  description,  on  which  there  was  an  existing  mortgage  given  by 
the  vendor.  The  court,  after  disposing  of  another  point  in  the  case, 
said :  "  There  was  no  effort  made  to  identify  the  black  ox  and 
red  oxen  found  in  defendant's  possession  on  April  29  at  the  place 
mentioned  in  the  evidence  as  the  animals  which  were  mortgaged 
while  in  Raymond's  possession,  in  the  town  of  Mitchell,  three 
months  previously.  The  bare  fact  that  the  mortgagor  owned  the 
cattle  in  April  was  insufficient.  Their  identity  should  have  been 
more  clearly  established."2 

In  a  former  case  in  the  same  State,  one  Tolbert  mortgaged  per- 
sonal property  to  plaintiff,  including  "  three  four-year  old  horses," 
and  described  as  being  in  the  possession  of  the  mortgagor.  It  was 
held  to  be  a  general  rule  that  a  description  of  the  mortgaged  prop- 
erty is  sufficient  if  it  will  enable  a  third  person,  aided  by  inquiries 
which  the  instrument  suggests,  to  identify  the  property.  Applica- 
tion of  this  rule  to  a  mortgage  in  which  three  horses  three  years 
old,  coming  four,  appear  to  be  misdescribed  as  "  three  four-year-old 
horses,"  that  the  jury  were  warranted  in  rejecting  the  misdescription 
as  to  age,  and  finding  that  the  three-year-olds  were  included  in  the 
mortgage.3 

Identity  of  cattle  —  ages  —  rule  as  to  description. 

§  531.  It  was  held  in  Wisconsin  that  a  mortgage  conveying  cattle 
was  not  void  because  it  describes  them  incorrectly  as  to  their  ages, 
when  it  clearly  appears  from  the  evidence  that  cattle  were  intended 
between  the  parties  to  be  conveyed  by  the  mortgage ;  and  that  this 
was  especially  true,  and  will  be  so  held  where  the  party  claiming  in 
opposition  to  the  mortgage  was  not  misled  by  the  erroneous  descrip- 
tion, and  could  not  have  been  misled  in  the  exercise  of  ordinary 
care.4  It  would  seem  that  this  is  the  only  correct  rule.  The  de- 
scription of  personalty  in  a  chattel  mortgage  should  be  so  certain  as 
to  not  mislead,  and  the  mortgagee  should  look  to  it,  for  his  lien  upon 
it,  as  a  security  may  and  does  often  depend  upon  the  description 
given  in  the  instrument  itself.  "Where  it  is  obscure,  vague  and  in- 

1  Tompkins  v.  Henderson,  83  Ala.  891.         3  Tolbert  v.  Horton,  33  Minn.  104. 
1  Kellogg  v.  Anderson,  40  Minn.  207.        «  Harris  v.  Kennedy,  48  Wls.  500. 


IDENTIFICATION  OF  PERSONAL  PROPERTY.  361 

definite,  and  so  uncertain  as  to  mislead  innocent  parties,  parol  evi- 
dence will  not  be  admissible  to  explain  the  matter  of  description. 
For  instance,  "one  horse,"  "one  mule,"  or  "one  wagon,"  is  too 
uncertain  for  identity.  But  on  the  other  hand,  where  there  is  a 
double  description,  and  part  of  it  will  be  sufficient  without  the  other, 
such  other,  whether  false  or  uncertain,  may  be  rejected  as  surplus- 
age. This  is  a  similar  rule  to  that  which  we  have  seen  applied 
to  the  identity  of  real  estate  by  the  description  given  in  the  deed, 
will  or  other  conveyance.1* 

Stock  of  goods  —  description  of. 

§  532.  An  action  of  trover  was  brought  in  Maine  to  recover  the 
value  of  a  stock  of  goods  in  Brunswick.  Plaintiff  claimed  under  a 
mortgage  from  Stout  to  him,  dated  December  29,  1868.  The  mort- 
gage described  the  property  as  "  the  goods  and  chattels  now  in  my 
store  in  Brunswick,  a  schedule  of  which  is  hereto  annexed."  It  was 
executed  to  secure  an  indebtedness  of  $700.  The  defendant  claimed 
under  a  mortgage  from  said  Stout  to  one  Thompson,  deceased,  to 
secure  a  debt  of  $300,  and  bearing  date  August  8, 1864.  The  above 
description  was  in  the  defendant's  mortgage,  however,  and  was  held 
sufficient  to  cover  the  goods  in  the  store,  which  were  embraced  in 
the  schedule.2  But  in  Illinois  it  was  held  that  where  a  mortgage 
purports  to  convey  personal  property,  the  mortgagee  must  see  to  it 
that  the  property  conveyed  is  correctly  and  truly  described,  so  that 
other  persons  may  not  be  misled.  That  the  description  in  themort- 

1  Hamner    v.    Smith,   22    Ala.    433;        2  Partridge  v.  White,  59  Me.  564. 
Peyton  v.  Ayres,  2  Md.  Ch.  64;  Reed  v. 
Spicer,  27  Cal.  57;  Collins  v.  Lavelle, 
44  Vt.  230. 

*  In  Mills  v.  Kansas  Lumber  Co.,  26  Kans.  576,  VALENTINE,  J.,  said:  "  Personal  property  can 
seldom  be  so  described  in  any  instrument  as  to  enable  a  stranger  to  select  it  from  other  prop- 
erty of  like  kind  without  the  aid  of  other  facts  than  those  mentioned  in  the  instrument  itself. 
The  name  of  the  horse  in  the  present  case  was  'George,'  but  there  may  have  been  several 
other  horses  in  the  same  county  by  the  same  name;  and  a  stranger  could  not  tell  without  in- 
quiries what  this  horse's  name  was,  or  whether  it  was  one  of  the  horses  whose  name  was  George 
or  not.  Resort  must  be  had  hi  nearly  all  cases  to  other  evidence  than  that  furnished  by 
the  mortgage  itself,  to  enable  third  persons  to  identify  mortgaged  property;  and  generally, 
where  there  is  a  description  of  the  property  mortgaged,  and  the  description  is  true,  and  by  the 
aid  of  such  description  and  the  surrounding  circumstances,  the  third  person  would,  hi  the  ordi- 
nary course  of  things,  know  the  property  that  was  mortgaged,  the  description  should  be  held 
to  be  sufficient.  In  the  present  case  the  defendant  Mills  was  bound  to  take  notice  of  the  mort- 
gage, for  it  had  been  properly  recorded.  He  was  bound  to  know  that  a  bay  horse,  six  years 
old  in  1878,  owned  by  and  in  the  possession  of  John  G.  Kaner,  was  mortgaged.  We  think, 
he  was  bound  to  know,  from  the  mortgage  itself,  that  the  property  was  situated  in  McPherson 
county  on  November  2,  1878,  *  *  *  as  the  property  of  Raner,  and  that  it  was  mortgaged. 
Under  such  circumstances,  we  think,  as  between  the  mortgagee,  the  Kansas  Lumber  Company, 
and  the  defendant  Mills,  we  must  hold  that  the  description  was  and  is  sufficient." 

46 


362  THE  LAW  OF  IDENTIFICATION. 

gage  must  control,  as  to  the  rights  of  parties,  otherwise  great  fraud 
and  injury  may  be  done.1 

Same  —  description  —  goods  —  groceries. 

§  533.  In  an  action  of  tort,  it  appeared  that  one  Smith  kept  a 
country  store,  and  mortgaged  certain  goods  to  plaintiff ;  Smith  sub- 
sequently went  into  insolvency,  and  the  defendants  were  appointed 
assignees,  and  took  possession  and  sold  the  goods ;  the  case  was 
referred  to  an  auditor,  who  reported,  and  this  was  put  in  evidence. 
Plaintiff  offered  in  evidence  the  value  of  the  goods  named  in  the 
writ.  Defendant  objected  because  the  plaintiff  had  not  put  in  any 
evidence  of  their  value  before  the  auditor.  The  evidence  was  held 
to  be  admissible.  That  an  auditor's  report  is  only  prima  facie  evi- 
dence, and  a  party  has  the  right  to  retry  before  the  jury  the  whole 
case,  and  to  introduce  any  competent  evidence  which  is  material  to 
the  issue  involved.  But  it  was  held  in  the  language  of  the  court 
"  that  many  of  the  articles  which  were  in  Smith's  store,  and  which 
were  specified  in  the  plaintiffs  declaration,  are  of  this  description, 
such  as  spades,  snathes,  pails,  buckets,  traps,  cards  and  others.  The 
fact  that  such  things  are  usually  kept  in  a  country  store  does  not  make 
them  "groceries"  within  the  meaning  of  the  mortgage,  or  extend 
the  natural  and  accepted  meaning  of  the  description  so  as  to  include 
them.2 

Same  —  misdescription  —  surplusage. 

§  534.  In  Iowa,  where  a  lease  made  the  rent  charge  for  a  store 
building  a  lien  on  "  any  and  all  goods,  wares  and  merchandise  then 
in  or  thereafter  to  be  put  in,  on  or  about  the  building,"  it  was  held 
not  to  include  teams  and  wagons  used  by  the  lessee  in  delivering 
goods  to  his  customers,  nor  notes  and  accounts  due  him,  and  kept  in 
the  building.3  Where  a  chattel  mortgage  is  executed  on  personal 
property,  and  the  property  is  misdescribed,  as  to  the  lot  of  ground 
upon  which  it  is  situated,  such  misdescription  will  be  rejected  as 
surplusage,  and  a  court  of  equity  will  not  take  jurisdiction  to  make 
a  useless  correction  of  the  mortgage,  and  parol  evidence  would  be 
admissible  to  establish  the  identity  of  the  property,  and  in  this  the 
law  affords  a  full  and  ample  remedy  ;  and  it  must  be  sought  on  the 
common-law  side  of  the  court.  And  where  creditors  hold  an  exe- 

1  Hutton  v.  Arnett,  51  111.  198.  520.     Citing  Vawter  v.  Griffin,  40  Ind. 

*  Fletcher  v.  Powers,  131  Mass.  833.       593;  Whittemore  v.  Qibbs,  24  N.  H.  488. 
8  Van   Patten  v.    Leonard,  55   Iowa, 


IDENTIFICATION  OF  PERSONAL  PROPERTY.  363 

cution  against  the  mortgagor  of  chattels,  they  may  sell  the  chattels  sub- 
ject to  the  lien  of  the  mortgage,  and  equity  will  not  enjoin  the  sale.1 

Same  —  portable  steam  engine. 

§  r>35.  Where  an  object  conveyed  is  sufficiently  described  by  the 
terms  used,  a  false  mention  of  some  particulars,  not  producing  ob- 
scurity as  to  the  intention  of  the  parties,  will  not  defeat  the  opera- 
tion of  the  instrument  upon  the  maxim  f also  demonstratio  non  nocet. 
And  so  where  a  mortgage  conveyed  a  portable  steam  engine,  grist 
and  saw-mill  of  forty-horse  power,  now  on  a  certain  plantation,  also 
a  certain  portable  steam  engine  used  for  ginning  and  shelling  corn, 
it  was  held  :  1.  That  parol  evidence  was  admissible  to  show  that 
the  engine  first  mentioned  was  intended  to  be  included  in  the  mort- 
gage, though  misdescribed  as  to  the  location.  2.  That  the  dealings 
and  declarations  of  the  parties  with  respect  to  such  engine  were  re- 
ceivable on  the  question  as  to  whether  or  not  it  was  the  intention  of 
the  parties  to  include  it  in  the  mortgage.2 

Deed  in  trust  —  crop  of  cotton  —  description. 

§  536.  A  trust  deed  was  executed  describing  the  property  as 
"  a  crop  of  cotton  now  being  cultivated  and  raised  by  him  on  cer- 
tain lands  on  which  he  is  now  living,  and  rented  by  him  from  New- 
man." At  that  time  the  grantor  resided  upon  and  cultivated  lands 
rented  from  Weatherly ;  but  he  also  cultivated  land  rented  from  New- 
man. It  was  held  that  the  trust  deed  conveyed  only  the  crop  on  the 
land  rented  from  Weatherly,  upon  which  Washington  was  living, 
the  words  "  and  rented  from  Newman  "  are  to  be  rejected  as  an 
erroneous  addition,  in  accordance  with  the  maxim  falso  demonstra- 
tio non  nocet,  and  parol  evidence  of  the  intention  of  the  parties  as  to 
the  property  to  be  conveyed  was  held  to  be  inadmissible.3  In  Ala- 
bama, it  was  held  that  the  property  was  sufficiently  identified  when 
the  mortgage  described  it  as  "  my  entire  crop  of  cotton  and  corn  of 
the  present  year,"  without  any  other  descriptive  words.4 

Indefinite  mortgage  —  mixed  logs  —  wagon. 

§  537.  It  was  held  in  Michigan  that  a  mortgage  upon  a  stated 
quantity  of  mixed  logs  in  the  drive  was  void  for  uncertainty  as 
against  third  parties  who  have  acquired  rights,  if  it  does  not  furnish 

»  Spaulding  v.  Mozier,  57  111.  148.  3  Hunt  v.  Shackleford,  56  Miss.  897. 

s  Goff  v.  Pope,  83  N.  C.  123.   'Citing       4  Ellis  v.  Martin,  60  Ala.  394. 
1  Greenl.  Ev.,  §  301;  Bryan  v.  Faucett, 
65  N.  C.  650;  Johiison  v.  Nevill,  id.  677. 


364  THE  LAW  OF  IDENTIFICATION. 

the  data  for  separating  them  from  the  mass.  MASTON,  J.,  said : 
"  As  well  might  we  undertake  to  enforce  a  chattel  mortgage  given 
on  a  pile  of  lumber  in  a  certain  yard  containing  fifty  or  a  hundred 
piles,  or  given  upon  twenty  sheep  in  a  flock  of  a  hundred,  or  upon 
ten  head  of  cattle  in  a  drove  or  herd  of  fifty.  To  sustain  such  mort- 
gages would,  we  think,  enable  parties  to  commit  gross  frauds,  and 
would  also  tend  to  prevent  third  parties  from  afterward  purchasing 
or  acquiring  interests  in  the  property,  a  part  of  which  had  been  thus 
mortgaged,  and  thus  tend  to  discourage  trade.1 

And  where,  in  the  State  of  Mississippi,  the  mortgaged  property 
was  described  as  "one  fonr-horse  iron-axle  wagon,"  without  any 
further  designation  or  description  as  to  ownership,  possession  or 
location,  was  held  to  be  insufficient,  as  against  subsequent  purchas- 
ers or  incnmbrancers.2 

Description  —  furniture  —  wheat  —  oxen. 

§  538.  In  a  Connecticut  case,  the  mortgaged  property  was  a  speci- 
fied number  of  different  kinds  of  furniture,  not  otherwise  described 
than  by  a  general  designation,  and  as  contained  in  the  hotel  of  the 
mortgagor,  there  being  at  the  time  a  great  number  of  some  of  the 
articles  and  a  less  number  of  others,  owned  by  him  and  in  the  hotel. 
It  was  held  that  the  mortgage  was  good  as  to  those  articles  that 
were  less  in  number  than  those  described  in  the  mortgage,  and  that 
as  to  the  others,  it  was  void  for  uncertainty.3  Where  a  mortgage 
covered  "  a  ten-acre  field  of  growing  wheat  on  the  north-west  quarter 
of  the  south-west  quarter  of  section  thirty-four,  township  eighteen, 
range  ten,  in  Henry  county,  Indiana,"  as  appears  from  the  opinion 
in  the  case,  this  was  a  sufficient  identification  of  the  property  con- 
veyed by  the  mortgage.  But  where  the  property  was  described  as 
"three  yoke  of  oxen,"  and  there  was  no  location  or  other  circum- 
stances of  identification,  this  was  held  insufficient  to  give  notice  to  third 
parties  who  purchase  bona  fide  for  value,  without  further  notice.4 

Same  —  staves  —  stock  and  chattels. 

§  539.  Where  personal  property  was  mortgaged  and  described  as 
"  all  the  staves  I  have  in  Monterey,  the  same  I  had  of  Moses  Fargo," 

1  Richardson  v.  Lumber  Co.,  40  Mich.  34  Ark.  93;  Bullock  v.  Williams,  16  Pick. 

203.  33  ;  Person  v.  Wright,  35  Ark.  169. 

»  Nicholson  v.  Karpe,  58  Miss.  34.  *  Duke   v.    Strickland,   43   Ind.    494; 

» Crosswell   v.   AllSs,   25  Conn.   801.  McCord  v.  Cooper,  30  id.  9;  Frost   v. 

And  see  Kelly  v.  Reid,  57  Miss.    89;  Beekman,  1  Johns.   Ch.   288;  Jennings' 

Draper  v.  Perkins,  id.  277;  Fowler  v.  Lessee  v.  Wood,  20  Ohio,  261. 
Hunt,  48  WIH.  345;  Washington  v.  Love, 


IDENTIFICATION  OF  PERSONAL  PROPERTY.  365 

and  it  appeared  that  the  mortgagor  had  no  staves  in  Monterey, 
but  had  a  quantity  in  the  adjoining  town  of  Sandisfield,  near  the 
boundary  of  Monterey,  which  he  had  of  Moses  Fargo ;  it  was  held 
that  the  first  part  of  the  description  might  be  rejected  as  false,  and 
the  remainder  was  sufficient  to  pass  the  property.1  It  was  held  in 
Massachusetts  that  a  mortgage  of  "  all  and  singular  the  stock  and 
chattels  belonging  to  the  mortgagor  in  and  about  the  wheelwright 
shop  occupied  by  him,"  was  not  void  as  against  his  creditors ;  and 
if  they  attach  the  property,  the  mortgagee  could  claim  the  proceeds 
of  the  sale  thereof  from  the  attaching  officer  under  the  statute.2 

Chattel  mortgage  —  goods  in  shop. 

§  540.  A  person  in  Bangor,  Maine,  executed  a  chattel  mortgage 
conveying  all  the  property  "  now  in  the  shop  occupied  by  me  in  the 
said  Bangor,"  and  the  instrument  was  without  date.  It  was  held 
that  parol  evidence  was  admissible  to  show  the  date;  and  that  the 
description  conveyed  the  property.  An  action  was  brought  to  re- 
cover the  goods.  Plaintiffs,  to  show  their  title,  offered  a  mortgage 
from  Kellen  to  them,  without  date,  recorded  February,  1,  1842,  of 
all  and  singular  the  goods,  wares  and  merchandise,  stock,  harness 
and  other  articles  of  every  kind  and  description  now  in  the  shop 
occupied  by  me  in  the  said  Bangor,"  and  then  proved  the  date  of  the 
mortgage.  The  property  was  left  in  the  possession  of  Kellen,  the 
mortgagor,  to  sell,  as  agent,  for  cash.  He  sold  a  portion  of  the  goods 
to  Hunt,  and  the  plaintiffs  refused  to  ratify  the  sale,  and  insisted 
that  it  was  invalid,  and  hence  the  action  against  Hunt.  The  descrip- 
tion was  held  to  be  sufficient  to  identify  the  goods  by  the  aid  of  oral 
testimony.3  In  a  later  case  in  the  same  State,  an  action  was  brought 
against  the  sheriff  for  the  acts  of  his  deputy,  in  taking  goods  of 
plaintiff.  It  was  held  that  where  a  stock  of  goods  mortgaged,  "in 
store  No.  2,  Glidden  Block,"  were  subsequently  removed  to  another 
store,  all  the  goods  in  store  No.  2  at  the  time  the  mortgage  was  exe- 
cuted were  covered  by  it.  That  moving  them  from  one  store  to 
another  would  not  destroy  the  mortgagor's  right  to  them,  though  it 
might  render  it  more  difficult  for  the  plaintiff  to  identify  them.4 
The  description  was  held  sufficient  when  it  conveyed  "  ah1  the  tools, 
stock,  fixtures  and  materials  on  hand  in  the  shop  formerly  occupied 
by  said  Kreber  &  Co.,  on  Central  avenue,  in  the  city  of  Madison, 

1  Pettis  v.  Kellogg,  7  Gush.  456.  3Burditt  v.  Hunt,  25  Me.  419. 

3  Harding  v.  Coburn,  12  Mete.  333.  *  Wheelden  v.  Wilson,  44  Me.  11. 


366  THE  LAW  OF  IDENTIFICATION. 

in  Indiana ;  and  being  the  same  property  this  day  sold  to  us  by  the 
said  Kreber  &  Co."  was  sufficiently  identified.1* 

Larceny  —  cattle  —  marks  —  brands. 

§  541.  A  defendant  in  Texas  was  indicted  for  the  larceny  of  a 
"  beef  steer."     It  was  held  that  unrecorded  marks  are  competent 
1  Ebberle  v.  Mayer,  51  Ind.  235. 

*In  Willey  v.  Snyder,  34  Mich.  60,  which  involved  the  identity  of  a  bull,  COOLEY,  Ch.  J.,  said: 
"  An  able  and  ingenious  argument  was  made  in  this  case  to  convince  us  that  a  description  of 
property  in  a  chattel  mortgage  as '  One  Durm  bull  known  as  the  Grinnalls  bull  —  said  bull  is  four 
years  old  and  weighs  about  2,400  pounds,1  was  so  vague  and  indefinite  as  to  prevent  the  mortgage, 
when  duly  filed,  becoming  constructive  notice  to  a  subsequent  purchaser  of  the  bull  from  the 
mortgagor.  The  position  of  the  plaintiff  is  perhaps  sufficiently  shown  by  the  instruction  which 
he  requested  in  the  court  below;  namely:  'that  the  description  must  be  such  as  would  enable  a 
stranger,  with  the  mortgage,  to  select  the  property.'  It  was  shown  in  the  case  that  the  mortgagor 
had  but  the  one  bull;  that  he  was  called  a  Durham,  and  was  Durham  blood  in  part,  and  that 
he  was  known  as  the  Grinnalls  bull .  It  would  seem  that  the  supposed  stranger,  with  a  knowl- 
edge of  these  facts  and  the  mortgage  in  his  hand,  could  have  had  no  difficulty  in  selecting  the 
property  if  he  was  a  man  of  ordinary  intelligence .  It  ought  not  to  be  very  difficult  to  select  one 
when  there  is  only  one  to  select  from;  especially  when  certain  particulars  are  mentioned  in 
which  the  animal  would  differ  from  all  others  in  case  the  number  had  been  greater.  But  if  a 
stranger  is  to  be  sent  out  to  select  property  mortgaged,  with  no  other  means  of  identification 
than  such  as  are  afforded  by  the  written  description,  and  without  being  at  liberty  to  supplement 
that  information  by  such  as  can  be  gained  in  the  mortgagor's  neighborhood  by  inquiry  of  those 
who  know  what  property  the  mortgagor  was  possessed  of,  which  would  answer  the  description  in 
the  instrument  when  it  was  given,  and  by  possessing  himself  of  such  other  circumstances  as  per- 
sons usually  avail  themselves  of  in  applying  written  descriptions  to  the  things  intended,  it  is  much 
to  be  feared  that  the  stranger  would  be  so  often  at  fault  that  chattel  mortgages,  if  their  validity 
depended  upon  his  success  in  identifying  the  property,  would  seldom  be 'of  much  value  as  securities. 
Written  descriptions  of  property  are  to  be  interpreted  in  the  light  of  the  facts  known  to  and  in  the 
minds  of  the  parties  at  the  time.  They  are  not  prepared  for  strangers,  but  for  those  they  are  to 
affect  —  the  parties  and  their  privies.  A  subsequent  purchaser  or  mortgagor  is  supposed  to  ac- 
quire a  knowledge  of  all  the  facts,  so  far  as  may  be  needed  to  his  protection,  and  he  purchases 
in  view  of  that  knowledge.  If  he  purchases  a  bull,  known  in  the  neighborhood  by  a  particular 
name,  he  is  chargeable  with  notice  of  that  fact.  A  mortgage  of  the  bull  by  that  name,  if  duly  filed, 
would  be  as  good  against  him  as  against  the  man  who  gave  it.  It  would  be  a  singular  defense  to 
be  set  up  by  him  to  the  mortgage,  that  being  a  stranger,  he  discovered  no  such  name  on  or  about  the 
bull,  and,  therefore,  could  not  in  fairness  be  bound  by  a  mortgage  which  undertook  to  identify 
the  animal  by  the  name.  Descriptions  do  not  identify  of  themselves,  they  only  furnish  the  means 
of  identification.  They  give  us  certain  marks  or  characteristics  —  perhaps  historical  data  or  in- 
cidents —  by  the  aid  of  which  we  may  single  out  the  thing  intended  from  all  others,  not  by  the 
description  alone,  but  by  that,  explained  and  applied.  Even  lands  are  not  identified  by  descrip- 
tion until  we  place  ourselves  in  the  position  of  the  parties  by  whom  the  description  has  been  pre- 
pared, and  read  it  with  the  knpwledge  of  the  subject-matter  which  they  had  at  the  time." 

In  Smith'v.  McLean,  24  Iowa, 331,  BECK,  J.,  said:  "  It  is  urged  that  the  mortgage  is  void  for  un- 
certainty of  description  of  the  property  conveyed,  which  is  in  these  words,  namely, '  five  freight 
wagons  and  twenty-five  yoke  of  cattle,  being  the  train  now  in  my  possession.'  It  is  contended, 
that,  as  this  description  is  not  such  as  would  enable  any  one  to  identify  the  property,  if  it  should 
not  be  in  the  mortgagor's  hands.Jthe  instrument  must,  therefore,  be  void  for  that  reason.  It  can- 
not, with  reason,  be  claimed,  that  a  description  of  the  property  should  be  set  out  in  the  instru- 
ment with  such  certainty  that  it  Is  capable  of  being  identified  by  such  description  alone.  It 
often  happens  that  this  cannot  be  done ;  certain  kinds  of  personal  property,  that  are  frequently 
conveyed  by  such  instruments,  it  would  be  impossible  to  so  describe.  It  is  true  that  there  must 
be  certainty  hi  the  description  of  the  property,  but  id  cerium  eat  quod  cerium  reddi  potest. 
Hence,  if  from  the  description  contained  in  the  instrument,  the  mind  is  directed  to  evidence 
whereby  it  may  ascertain  the  precise  thing  conveyed,  if  thereby  absolute  certainty  may  be 
obtained,  the  instrument  is  valid.  The  rule  may  be  stated  in  different  words,  thus:  That  de- 
scription which  will  enable  third  persons,  ablcd  by  inquiries  which  the  instrument  itself  indi- 
cates and  directs  to  identify  the  property,  is  sufficient." 


IDENTIFICATION  OF  PERSONAL  PROPERTY.  367 

evidence  to  prove  title  or  ownership  of  animals  alleged  to  have  been 
stolen;  that  the  prohibition  of  the  Code  was  confined  to  unre- 
corded brands?  Where  one  was  indicted  in  the  same  State  for 
stealing  a  "steer"  from  one  Prather,  which  was  identified  by  a 
brand,  it  was  held  that  the  court  did  not  err  in  admitting  evidence 
showing  the  character  and  description  of  the  brand  used  by  Prather, 
although  this  brand  had  not  been  recorded.  The  evidence  was  not 
offered  or  relied  upon  to  prove  title,  but  for  the  purpose,  in  connec- 
tion with  other  evidence  before  the  jury,  to  identify  the  steer  re- 
ferred to  by  the  witness,  with  the  one  described  in  the  indictment.2 

Same  —  hog —  identity  of  hog  and  prisoner. 

§  542.  Where  a  party  in  Texas  was  indicted,  charged  with  feloni- 
ously taking  a  hog,  the  property  of  one  Isaac  Mann,  who  undertook 
to  identify  the  swine.  He  testified  that  the  sow  taken  was  his 
property,  one  of  the  Essex  breed,  and  worth  $10 ;  that  his  Essex 
sow  had  been  absent  without  leave  since  December  1,  1874; 
that  a  few  days  thereafter,  his  neighbor,  Carnes,  came  with  the  head 
of  his  sow  and  threw  it  over  the  fence  where  he  was ;  he  recog- 
nized it  by  the  ear-marks,  two  splits  in  the  right  ear,  and  under-bit 
in  the  left  ear;  recognized  the  head  by  these  marks  only.  Carnes 
testified  that  he  found  the  head,  skin  and  tail  in  his  field  and  carried 
it  to  Mr.  Mann.  The  next  and  principal  witness  testified  that  he 
was  hired  to  defendant  to  work ;  that  he  and  defendant,  and  another 
went  to  Mann's  at  night  and  got  a  hog,  and  that  he  ate  some  of  it. 
There  was  much  other  and  conflicting  testimony.  But  the  court 
said  :  "  The  witness,  Peter  Blount,  on  his  examination,  it  is  true, 
denied  any  criminal  complicity  with  the  defendant  in  the  killing  of 
the  hog  testified  to  by  him.  Still,  the  jury  might  reasonably  infer 
that  he  was  equally  guilty  with  the  defendant,  if  they  believed  that 
the  hog  which  he  says  he  helped  to  kill  was  tlje  animal  that  Mann 
lost.  If  so,  then  the  jury  should  have  been  instructed  that  Blount's 
testimony  would  not  warrant  a  conviction  unless  corroborated  by 
other  evidence  tending  to  connect  the  defendant  with  the  offense." 
It  was  necessary  to  identify  the  prisoner  as  well  as  the  hog.3 

Larceny  —  treasury  notes  —  instructions  as  to  identity. 

§  543.  A  defendant  was  tried  and  convicted  for  the  larceny  of 
treasury  notes,  and  it  appeared  that  certain  notes  claimed  to  be 

1  Johnson  v.  State,  1  Tex.    App.  333.        8  Kelly  v.  State,  1  Tex.  App.  638. 

2  Poage  v.  State,  43  Tex.  454. 


368  THE  LAW  OF  IDENTIFICATION. 

identical  with  those  stolen  were  found  at  a  place  where  the  accused 
had  concealed  them.  The  court  gave  the  jury  an  instruction  which 
contained  the  following :  "  One  of  the  twenty-dollar  bills  was  posi- 
tively identified."  This  was  held  to  be  an  error,  and  for  which  the 
judgment  was  reversed ;  and  it  was  said  :  "  While  courts  may  pre- 
sent to  the  minds  of  the  jury,  in  a  criminal  case,  such  considerations 
as  are  appropriate  to  aid  them  in  the  proper  and  legal  discharge  of 
their  duties,  they  must  be  scrupulously  careful  to  leave  to  the  jury  the 
full  exercise  of  their  own  functions.  And  as  this  was  not  done  in 
this  instance,  the  judgment  must  be  reversed. l 

Beceiving  stolen  goods  —  produced  in  court. 

§  544.  In  an  indictment  for  receiving  stolen  property,  knowing  it 
to  be  such,  it  appeared  that  the  defendant  was  a  j  unk  dealer ;  and 
the  alleged  stolen  property,  twelve  "  brass  couplings  "  for  hose,  be- 
longing to  a  railroad  company,  were  found  in  his  possession,  of  the 
value  of  about  $3  each.  The  party  who  sold  them  to  defend- 
ant said  he  stole  them,  but  did  not  so  inform  the  defendant.  A 
witness  testified  that  the  couplings  belonged  to  an  engine  hose, 
which  were  in  a  little  shed  or  shop  ;  that  they  were  taken  away  and 
were  like  the  ones  in  court,  and  proved  their  value,  etc.  Here  the 
witness  was  handed  the  brass  couplings  for  the  purpose  of  identify- 
ing them  as  those  which  were  missing.  Objection  was  made  and 
overruled,  and  the  witness  said :  "  The  missing  couplings  were 
never  perfect."  Other  witnesses  who  were  present  when  the  couplings 
were  sold,  spoke  of  them  as  compared  with  those  in  court,  thus : 
"  Three  or  four  of  the  brasses  were  like  the  one  here  ;  they  were 
like  these,  only  they  had  small  shoulders ;  the  others  were  different." 
Another  said  :  "  I  think  they  were  like  that ;  they  were  all  just 
like  that  except  one,  which  was  rough."  The  man  who  sold  them 
said :  "  The  brass  I  sold  him  was  some  like  that,  and  some  had  the 
corners  come  down."  The  defendant  was  convicted  upon  this  evi- 
dence of  identity  of  the  couplings,  and  the  case  went  to  the  Supreme 
Court  on  error.  The  court  held  that  though  a  prima  facie  case 
was  made  by  the  prosecution,  yet  it  was  not  conclusive,  and  the 
judgment  was  reversed.2 

Bobbery  —  money  and  watch  —  rule  in  England. 

§  545.  In  an  English  case,  five  defendants  were  indicted  for  rob- 
bery and  tried  separately.  Woodward  was  robbed  of  money,  and 

1  Hill  v.  State,  17  Wis.  675.  "  Jupitz  v.  People,  34  111.  516. 


IDENTIFICATION  OF  PERSONAL  PROPERTY.  369 

Urwick  of  money  and  his  watch.  On  the  trial  of  the  first  indict- 
ment it  appeared  that  on  the  evening  of  March  23,  1836,  Wood- 
ward and  his  nephew  Urwick  were  traveling  in  a  gig,  and  were 
stopped  by  five  persons,  who  beat  and  robbed  them.  In  comment- 
ing upon  the  further  testimony  and  rule  of  law,  LITTLEDALE,  J., 
said:  "  I  think  it  makes  no  difference  that  Mr.  Urwick's  watch  is 
the  subject  of  the  next  indictment ;  I  must  own  that  I  think  a  part 
of  the  evidence  is  inadmissible.  Suppose  Mr.  Urwick  had  not  been 
there  at  all,  and  that  when  Mr.  Woodward  was  robbed,  a  watch  had 
been  under  the  seat  of  his  gig ;  and  that  after  the  robbery,  he  had 
discovered  that  the  watch  was  missing ;  I  have  no  doubt  evidence 
might  be  given  of  the  loss  of  the  watch  at  that  place.  So  I  think 
you  may  give  evidence  that  Mr.  Urwick  lost  his  watch  at  the  same 
time  and  place.  But  you  must  not  go  into  evidence  of  the  violence 
that  was  offered  to  him.  One  question  in  this  case  is,  whether  those 
persons  were  at  the  place  in  question  when  Mr.  Woodward  was 
robbed  ;  and  as  proof  that  they  were  so,  we  must  hear  evidence  that 
one  of  them  has  got  something  that  was  lost  there,  and  at  that  time.1 

Burglary  —  carriage  heard  —  bad  spelling. 

§  546.  Parties  were  indicted  in  New  Hampshire,  charged  with 
burglary,  in  breaking  into  a  store  at  night.  As  a  witness,  Mrs.  Bel- 
lows, subject  to  exceptions,  was  allowed  to  testify  that  she  lived  near 
said  store,  and  that  on  the  night  in  question,  between  one  and  two 
o'clock,  she  heard  a  carriage  driven  from  the  square  near  her  ;  she 
should  say  that  it  started  from  somewhere  near  the  square.  This 
evidence  was  held  to  be  competent.2 

In  a  case  on  indictment  for  burglary  in  Texas,  the  jury  found 
the  accused  guilty  of  burgerally  and  theft;  and  he  moved  in 
arrest  of  judgment.  It  was  held  that  there  was  no  such  offense, 
and  no  such  word  as  burgerally,  nor  was  it  idem  sonans  with  "  bur- 
glary ; "  wherefore  the  verdict  was  held  to  be  unintelligible,  and  it 
was  error  to  overrule  the  motion  in  arrest  of  judgment.3  Bad 
spelling  by  the  jury  will  often  amount  to  no  verdict,  where  the 
words  are  not  idem  sonans. 

Same  —  possession  of  horse  —  variance. 

§  547.  Defendant  Tinney  was  indicted  for  stealing  a  horse. 
The  indictment  charged  that  the  stolen  horse  belonged  to, 

1  Rex  v.  Rooney,  7  Carr.  &  P.  517.  3  Haney  v.  State,  2  Tex.  App.  504. 

3  State  v.  Sliinborn,  46  N.  H.  497. 

47 


370  THE  LAW  OF  IDENTIFICATION. 

and  was  taken  from  the  possession  of  one  M.  C.  Doyal.  It 
was  proved  that  Dojal  was  the  owner  of  the  horse ;  that  it  left 
his  premises  in  Gonzales  county,  Texas,  and  strayed  off  with  a 
bell  upon  it  on  July  17th,  was  seen  in  Caldwell  county  on 
the  18th,  about  twelve  miles  from  home.  On  the  21st,  it  was 
taken  up  by  Hurst,  who,  after  making  inquiry  for  the  owner, 
and  failing  to  find  him,  took  the  horse  to  his  home,  intending  to 
estray  him,  and  there  staked  him  out  in  his  field  and  also  fed  him. 
That  night  the  horse  was  taken  from  Hurst's  field,  and  the  next 
seen  of  him  was  in  the  possession  of  defendant  in  De  Witt  county 
on  the  24th.  It  was  insisted  that  there  was  a  fatal  variance  between 
the  allegation  and  the  proof,  as  to  the  party  from  whose  possession 
the  horse  was  taken  ;  that  it  was  taken  from  the  possession  of  Hurst 
and  not  Doyal.  He  was  convicted.  But  the  Supreme  Court  held 
that  the  point  was  well  taken,  and  the  conviction  was  reversed.1 

Robbery  —  identity  —  evidence  of  accomplice. 

§  548.  Where  an  accomplice  in  a  case  of  robbery  testifies  against 
his  co-defendants,  and  if  the  jury  believe  his  statement  of  the  rob- 
bery, they  may  convict  of  the  capital  offense,  though  such  testimony 
may  stand  totally  uncorroborated  by  any  other  evidence  in  the  case. 
So  held  in  England.  Atwood  and  Robbing  were  tried  for  robbery 
on  the  highway.  The  prosecutor  testified  that  on  the  day  laid  in 
the  indictment,  he  was  met  by  three  men,  who  after  using  him  with 
violence  and  threatening  his  life,  demanded  his  money,  which  he 
accordingly  delivered  to  them  ;  but  that  it  was  so  dark  at  the  time, 
he  could  not  swear  that  the  prisoners  at  the  bar  were  two  of  the 
men  who  robbed  him,  and  so  he  failed  to  identify  them.  He  could 
prove  only  the  corpus  delicti,  when  the  identity  of  the  prisoners 
was  equally  important.  Their  accomplice  was  then  permitted  to 
testify,  and  deposed  that  he  and  the  two  prisoners  at  the  bar  had,  in 
the  company  of  each  other,  committed  the  robbery.  Upon  his  testi- 
mony the  two  men  were  convicted  and  sentenced  to  death.  The 
only  evidence  of  any  importance  given  by  the  accomplice  was  that 
of  identity,  without  which  they  must  have  escaped.3 

Larceny  —  cattle  —  brand  —  identity. 

§  549.  One  Boren,  in  Texas,  was  convicted  for  the  larceny  of  one 
Bteer,  the  property  of  one  Slayton.  The  question  of  identity  became 

1  Tinney  v.  State,  34  Tex.  App.  113-  "  Rex  v.  Atwood,  1  Leach  Cr.  Gas.  464. 
119. 


IDENTIFICATION  OF  PERSONAL  PROPERTY.  371 

the  important  question,  and  it  was  attempted  to  prove  the  identity 
of  the  steer  by  a  brand  on  the  animal.  Defendant  set  up  the  claim 
that  the  animal  belonged  to  one  Gartin  and  that  he  had  authority 
from  Gartin  to  take  the  animal,  and  then  the  question  was,  whether 
or  not  defendant  knew  that  it  did  not  belong  to  Gartin.  The  court, 
giving  the  facts  on  this  point,  said:  "It  appears  from  the  record 
that  Gartin's  brand  was  a  long  eleven,  placed  lengthwise  on  the  ani- 
mal ;  the  brand  on  the  animal  in  question  was  a  perpendicular  eleven, 
and  not  so  long  as  the  brand  used  by  Gartin.  Appellant  offered  to 
prove  by  the  stockmen  that  they,  by  accident,  sometimes  misplaced 
their  brand  on  their  stock.  To  this  evidence  the  State  objected,  and 
its  objection  was  sustained  by  the  court.  "We  think  this  was  er- 
roneous. The  State  reh'ed  upon  the  shape  and  manner  in  which  the 
brand  was  placed  upon  the  animal,  as  strong  proof  of  guilty  knowl- 
edge. Appellant  may  have  known  Gartin's  brand,  as  well  as  the 
manner  in  which  it  was  usually  placed  on  his  stock ;  and  yet,  he  may 
have  believed  that  in  this  particular  case  the  brand  was  accidentally 
placed  in  an  unusual  manner."1 

Larceny  —  cattle  and  horses  —  possession  —  identity. 

§  550.  In  case  of  larceny  it  is  necessary  to  identify  the  property 
as  being  the  property  of  the  alleged  owner,  and  to  prove  that  it 
was  taken  from  his  possession,  if  the  indictment  so  charges.  In 
Texas,  one  Alexander  was  charged  by  indictment  with  stealing 
a  cow,  and  that  it  was  the  property  of,  and  taken  from  the  pos- 
session of  one  E.  K.  Wilson.  The  evidence  showed  that  the  animal, 
at  the  time  it  was  missed  from  its  accustomed  range,  was  under 
the  care,  management  and  control  of  one  Fernandez,  who  had  been 
hired  by  Wilson  to  take  charge  of  his  ranch.  This  was  held  to  be 
a  fatal  variance.2  In  the  same  court  a  similar  question  was  decided. 
The  indictment  charged  the  ownership  and  possession  of  an  alleged 
stolen  horse  to  be  in  one  J.  C.  Benton ;  the  proof  showed  that  the 
animal  was  taken  by  the  accused  from  the  place  at  which  one  Bull 
had  hoppled  it  by  direction  of  D.  H.  Benton,  who  had  borrowed  the 
horse  from  J.  C.  Benton.  It  was  held  that  the  proof  established  the 
possession  of  the  horse  at  the  time  of  the  larceny  in  D.  H.  Benton, 
and  that  the  variance  was  fatal  to  a  conviction.3 

1  Boren  v.  State,  23  Tex.  App.  28.  8  Conner  v.  State,  24  Tex.  App,  245. 

2  Alexander  v.  State,  24   Tex.    App. 
126. 


372  THE  LAW  OF  IDENTIFICATION. 

Identity  of  stolen  goods  and  box. 

§  551.  Where  a  party  was  indicted  for  burglary,  on  the  trial  of 
the  case,  a  witness  testified  that,  early  in  the  morning  after  the  bur- 
glary, she  saw  the  prisoner  and  two  other  persons  come  to  the  prison- 
er's house  with  a  light  wagon  covered  over  with  old  canvas ;  that  the 
driver  took  from  the  wagon  two  or  three  large  sacks,  the  contents 
of  one  of  which  she  saw,  and  they  appeared  to  be  velvets  and  silks ; 
they  also  took  out  a  cigar  box  and  a  small  trunk,  answering  the  de- 
scription of  those  taken  from  the  store  ;  that  on  the  same  day  the 
prisoner  went  to  a  carpenter's  shop,  adjoining  his  house,  and  had  a 
box  made,  which  he  took  into  his  house,  and  which  was  soon  after 
brought  out  and  put  on  an  express  wagon,  with  a  large  trunk,  three 
valises  and  a  small  trunk.  This  box  was  produced  in  court  and 
identified  by  her.  It  was  marked  with  the  prisoner's  name  and 
directed  to  Boston.  It  was  found  at  the  express  office  in  Boston, 
where  the  prisoner  was  arrested  when  he  called  for  it.  The  box  and 
contents  were  presented  and  received  in  evidence,  and  identified, 
over  the  objection  of  prisoner.  This  was  held  to  be  admissible,  and 
sufficient  to  warrant  a  verdict  of  guilty.1 

Same  —  stolen  cow  —  identity  of  accused. 

§  552.  The  question  of  identity  came  up  in  a  Texas  case,  in  which 
one  Curry  was  indicted  for  stealing  a  cow  from  John  Morris  in  Au- 
gust, 1879.  When  Morris  missed  the  cow,  he  learned  that  Curry 
had  been  killing  beeves,  and  went  to  where  Curry  lived  with  other 
tenants  and  renters,  and  found  there,  spread  out  on  the  roof  of  a 
stable  in  the  horse-lot,  the  hide  of  an  animal,  which  he  identified  aa 
the  hide  of  his  cow,  with  the  tail  and  ears  cut  off.  This  evidence 
looked  to  be  quite  conclusive.  The  animal,  it  appeared,  had  not  been 
branded.  Morris  and  others  continued  the  search  on  the  next  day 
and  found  the  head  of  an  animal,  which  he  identified  as  the  head  of 
his  cow,  about  three  hundred  and  fifty  yards  from  prisoner's  house. 
Several  tenants  occupied  and  used  the  same  horse-lot,  and  so  it  was 
uncertain  who  was  the  guilty  party.  This  was  held  to  be  insufficient 
to  identify  the  accused  as  the  guilty  man.2  It  was  necessary  to  iden- 
tify the  accused  as  well  as  the  cow. 

Bank  robber  —  identified  by  his  voice. 

§  553.  Scott  and  Dunlap  were  indicted  for  breaking  and  entering 
a  banking-house  on  January  26,  1876,  and  stealing  a  large  quantity 

4  Foster  v.  People,  63  N.  Y.  619.  •  Curry  v.  State,  7  Tex.  App.  267. 


IDENTIFICATION  OF  PERSONAL  PROPERTY.  373 

of  securities.  Whittlesey,  the  cashier  of  the  bank,  was  taken  from  his 
room  and  the  combination  of  the  safe  lock  on  the  vault  of  the  bank 
extorted  from  him  by  two  men,  whom  he  claimed  to  identify  as  the  de- 
fendants. As  to  Scott,  the  witness  Whittlesey  undertook  to  identify 
him  by  his  voice,  but  when  asked  whether  there  was  any  peculiarity 
in  the  voice,  he  could  not  answer ;  Scott  was  then  called  upon  to  stand 
up  and  repeat  something,  and  he  did  so,  and  the  witness  said  that 
Scott  was  suppressing  his  voice.  Scott's  attorney  said  to  him :  "  Speak 
it  right  out."  The  judge  said :  "  I  do  not  think  this  is  competent." 
Then  defendant's  counsel  insisted  that  he  had  the  right  to  have  the 
peculiarities  of  the  defendant's  voice  •  pointed  out  by  the  witness, 
and  that  for  this  purpose  the  voice  itself  was  competent  to  be  intro- 
duced in  evidence  ;  but  the  court  thought  not,  and  rejected  it.  On 
error,  the  court  said :  "  The  court  properly  ruled  that  it  was  not  com- 
petent for  the  defendant  Scott,  to  prove  what  was  his  usual  and 
natural  voice,  in  the  court-room  "  to  repeat  something  "  when  not 
under  oath  as  a  witness.  His  manner  of  speaking  being  in  question, 
there  was  no  way  of  determining  whether  he  would  use  his  voice  in 
his  natural,  or  in  a  constrained  simulated  manner,  the  genuineness  of 
the  voice  used  not  being  supported  by  his  oath.1 

Confession  in  jail  —  identified  by  voice. 

§  554.  Where  the  prisoner  was  in  jail  at  the  same  time  with  the 
witness,  though  not  in  the  same  room,  the  witness  testified  to  a  con- 
versation with  the  prisoner  in  which  the  prisoner  confessed  his 
guilt.  He  testified  that  he  conversed  with  the  accused  through  the 
soil  pipes  of  the  jail,  and  that  he,  the  prisoner,  confessed  or  admitted 
to  him,  the  witness,  that  he  was  guilty  of  the  charge  on  which  he 
had  been  cast  into  prison,  and  that  he  knew  the  prisoner  from  his 
voice.  The  court  upon  this  statement,  with  seeming  reluctance,  per- 
mitted it  to  go  to  the  jury.  Held,  that  it  was  competent  to  go  to 
the  jury,  and  that  it  was  their  province  to  consider  it,  and  give  it 
such  weight  as  it  might  be  entitled  to.2 

Burglary  —  evidence  of  identity  —  rule  in  Iowa. 

§  555.  As  to  the  evidence  of  identity  in  a  case  of  burglary, 
the  prosecuting  witness  and  his  wife  both  testified  that  defendant 
was  the  person  who  entered  their  house  on  the  night  of  the 

1  Com.  v.  Scott,  123  Mass.  222.     Citing    Reg.    v.  Clieverton,   2  Post.  &  F.   833; 
King  v.  Donahue,  110  id.  155.     And  see    Harrison's  case,  12  St.  Tr.  850. 
8 Brown  v.  Com.,  76  Pa.  St.  319. 


374:  THE  LAW  OF  IDENTIFICATION. 

burglary ;  and  there  were  other  circumstances  proved  by  the  testi- 
mony of  other  witnesses,  which  tended  strongly  to  identify  him  as 
the  criminal.  The  fact  that  the  person  who  committed  the  offense 
stated,  before  he  entered  the  house,  that  he  was  the  defendant,  was 
proper  to  be  considered  by  the  jury,  in  connection  with  the  other 
circumstances  in  evidence,  in  determining  the  question  of  identity. 
And  where  the  indictment  charged  burglary  with  intent  to  commit 
assault  and  battery,  and  the  body  of  the  crime  was  established,  it 
was  held  that  it  was  competent,  for  the  purpose  of  identifying  the 
defendant  as  the  criminal,  to  show  that  he  knew  that  there  was  a 
sum  of  money  in  the  house  at  the  time,  even  though  it  tended  to 
prove  the  commission  of  a  distinct  crime  from  that  charged  in  the 
indictment,  or  a  different  motive  from  that  which  was  alleged.1 

Identity  of  horse  thief—  rule  in  Texas  —  yeast  can. 

§  556.  One  Huston  was  indicted  in  Texas  for  stealing  a  horse.  On 
the  trial  of  the  case,  an  important  question  was  the  identity  of  the 
prisoner.  The  witness  for  the  State  could  not  recognize  the  prisoner 
at  the  bar  with  sufficient  certainty  to  identify  him  as  the  person  in 
whose  possession  he  had  seen  the  horse,  but  stated  that,  on  a  previous 
trial,  in  which  he  was  a  witness,  he  had  identified  the  accused  as 
the  man.  Then  the  State's  attorney  testified  that  the  prisoner  was  the 
same  man  identified  by  the  witness  on  the  previous  trial.  This  was 
held  proper,  and  that  the  evidence  was  sufficient  proof  of  identity.2 
In  Illinois,  one  Spellman  brought  suit  against  the  American  Ex- 
press Compnay  to  recover  damages  for  the  loss  of  a  can  of  yeast 
shipped  on  defendant's  line,  to  be  used  for  purpose  of  distilling. 
It  was  alleged  to  have  been  broken  or  punctured  by  the  negligence 
of  the  company.  It  was  held  that,  for  the  purpose  of  identity,  there 
was  no  error  in  allowing  in  evidence  a  can  similar  to  that  in  which 
the  yeast  was  shipped,  for  the  examination  of  the  jury,  and  to  aid 
them  in  their  determination.3 

Larceny  by  millers  —  English  and  American. 

§  557.  An  indictment  was  tried  in  Massachusetts,  in  which  it  ap- 
peared that  a  miller  having  received  barilla  to  grind,  fraudulently 
retained  part  of  it,  returning  a  mixture  of  barilla  and  plaster  of 
Paris.  It  was  held  to  be  larceny.  It  was  also  held  that  the  govern- 
ment was  not  bound  to  produce  the  truckman  who  carried  the 

1  State  v.  Kepper,  65  Iowa,  745(1885).        3  Am.  Ex.  Co.  v.  Spellman,  90111.  455 
•  Ruston  v.  State,  4  Tex.  App.  482.        (1878). 


IDENTIFICATION  OF  PERSONAL  PROPERTY.  375 

barilla  to  and  from  the  mill,  to  prove  that  it  was  not  adulterated  in 
course  of  transportation  ;  though  there  was  only  circumstantial  evi- 
dence that  it  was  adulterated  by  the  miller,  it  was  held  to  be  a 
sufficient  identification.1  A  similar  case  occurred  in  England,  in 
which  the  indictment  charged  the  miller  with  receiving  two  separate 
parcels  of  barley,  each  parcel  containing  four  bushels,  to  be  ground 
at  his  mill,  and  that  be  delivered  three  bushels  and  forty-six  pounds 
of  oatmeal  and  barley  mixed.  The  indictment  was  held  to  be  bad, 
because  it  did  not  identify,  but  left  it  uncertain  as  to  which  of  the 
two  separate  parcels  of  four  bushels  it  related.2 

Larceny  of  trunk  and  money  —  identity  of  money. 

§  458.  One  Bishop  was  indicted  for  larceny  of  a  leather  trunk, 
the  property  of  W.  J.  Bishop,  in  October;  1874.  The  trunk  con- 
tained a  new  $50  bill  of  the  Exchange  National  Bank  of  Norfolk, 
Va.  The  prisoner  had  previously  been  in  the  service  of  the 
prosecutor,  occasionally  waiting  on  his  office,  from  which  the  trunk 
was  stolen,  and  was  familiar  with  the  locality  and  the  habits  of  the 
prosecutor ;  he  then  resided  a  mile  and  a-half  from  the  prosecutor, 
and  frequently  visited  the  prosecutor's  premises,  on  which  his 
father  and  brother  lived.  In  the  following  December  he  passed 
to  one  Charles,  for  small  bills,  a  new  $50  bill,  of  the  same  Exchange 
Bank  of  Norfolk,  at  the  same  time  cautioning  Charles  not  to  use  his 
name  when  passing  the  bill,  and  left  the  county  for  Raleigh  on  the 
next  day.  This  evidence  was  objected  to.  It  was  also  shown  that 
the  prisoner  had  no  means  but  his  labor,  for  which  he  had  received 
in  1874  only  about  $30.  This  was  held  sufficient  to  warrant  a 
verdict  of  guilty,  and  the  judgment  of  conviction  was  affirmed.3 
Where,  in  a  trial  for  murder,  the  defense  of  alibi  of  the  alleged 
principal  is  set  up,  though  the  matter  is  affirmative,  the  doctrine  of 
reasonable  doubts  may  be  considered  and  cannot  be  eliminated  by 
instructions  to  the  jury.4 

Money  —  metallic  —  identification  of  it  —  difficulty 

§  559.  There  is,  perhaps,  more  difficulty  in  identifying  money 
than  any  other  thing,  whether  it  be  in  bank  notes  or  in  coin,  when 
the  identity  depends  upon  the  mere  appearance  of  the  money,  and 
without  the  aid  of  some  circumstance.  Especially  is  this  true  in  re- 
spect to  metallic  money,  unless  it  has  been  marked  for  the  purpose 

1  Com.  v.  James,  1  Pick.  375.  3  State  v.  Bishop,  73  N.  C.  44. 

3  Rex  v.  Haynes,  4  M.  &  S.  214.  4  Crook  v.  State,  27  Tex.  App.  198. 


376  THE  LAW  OF  IDENTIFICATION. 

of  identification.  The  number  of  pieces  coined  from  the  same  die 
being  so  great,  and  exactly  similar  in  every  particular,  it  is  said  that 
even  the  exact  coincidence  between  a  particular  combination  of  de- 
nomination of  ordinary  coin  contained  in  a  purse  lost,  and  precisely 
the  same  number  of  coin  of  the  same  denomination  contained  in  a 
purse  found  on  another  person,  would  not,  of  itself,  amount  to  proof 
of  identity ;  and  as  has  been  further  suggested,  not  only  are  the 
pieces  of  coin,  when  new,  precisely  similar,  but  the  same  degree  of 
use  and  wear  to  which  they  are  generally  subjected,  continue  to  pre- 
serve the  same  resemblance.  And  it  is  extremely  difficult,  if 
not  impossible,  to  say  of  any  coin,  however  old  or  rare,  that  there 
are  not  two  pieces  in  existence  exactly  similar.  Arid  it  is  said  by 
Mr.  Burrill,  "that  the  only  effectual  means  of  identifying  metallic" 
money  is  by  peculiar  marks  upon  the  individual  coins,  produced 
either  by  accident  in  the  process  of  coining,  or  in  the  course  of  wear, 
or  intentionally  made,  either  for  the  express  purpose  of  identifica- 
tion, or  out  of  mere  wantonness,  such  as  scratches,  abrasions,  inden- 
tations, discoloration  by  heat  or  chemical  substances,  and  the  various 
mutilations  by  chipping,  perforating,  hammering  and  the  like,  so 
commonly  seen  upon  silver  coin.  Sometimes,  though  more  rarely, 
the  process  of  mere  wear  is  found  to  communicate  to  a  coin  an  ap- 
pearance by  which  it  is  more  easily  distinguishable  from  others  of 
the  same  denomination  and  issue."1 

Same  —  currency  —  bank  notes  —  identity  of. 

§  560.  The  same  author,  speaking  of  the  currency  of  the  country, 
substantially  lays  down  the  same  rule  in  regard  to  paper  money ; 
the  same  observations  are  for  the  most  part  applicable.  The  com- 
plete similarity  necessarily  given  to  notes  of  the  same  denomination, 
and  of  the  same  bank,  by  their  engraved  portions,  is  little  affected 
by  the  written  portions,  or  filling  up,  which  also  bear  a  close  resem- 
blance to  each  other ;  the  only  real  difference  consisting  in  the  bank 
numbers,  and  letters  and  dates ;  which,  however,  are  rarely  so  much 
as  noticed  by  the  majority  of  persons  holding  and  using  the  money  ; 
hence  the  necessity  of  resorting  to  marks  upon  the  particular  note 
or  notes  in  question,  such  as  the  bank  numbers,  letters  and  dates 
already  mentioned,  but  more  commonly  marks  intentionally  made  by 
the  holder,  or  accidentally  made  in  the  course  of  circulation  —  such 
as  stains,  rents  or  mutilations  of  various  kinds. 
1  Burrill  Cir.  Ev.  171,  657. 


IDENTIFICATION  OF  PERSONAL  PROPERTY.  377 

Same  —  indictment  for  uttering  counterfeit  coin. 

§  561.  The  coin  must  be  specifically  described,  but  it  is  a  question 
of  fact  for  the  jury  to  determine  whether  or  not  proof  in  the  case 
supports  the  description  given.  One  Connell,  in  England,  was  in- 
dicted in  1842  for  uttering  a  counterfeit  coin  intended  to  resemble 
and  pass  for  "  a  groat,"  well  knowing  the  same  to  be  false  and  coun- 
terfeit. All  the  witnesses  called  it  a  four  penny  piece  Mr.  Field, 
the  inspector  of  coin  to  the  Mint,  having  said  that  the  groat  was 
counterfeit,  was  asked  on  cross-examination,  "  What  do  you  call  the 
coin  ?  "  He  replied  a  groat  —  it  has  had  that  name,  I  believe,  from 
the  earliest  period  ;  it  has  the  words  four  pence  on  it,  but  the  orig- 
inal name  was  groat  in  the  time  of  Ed  ward  the  Third;  they  were  not 
then  the  same  size  and  weight  of  this."  On  re-examination  he  was 
asked,  "  have  you  heard  them  called  groats  ? "  and  his  reply  was, 
"  yes,  they  are  called  groats  as  well  as  four  penny  pieces  in  the 
proclamation."  MAULE,  J.  (ERSKINE,  J.,  being  present),  said  in  sum- 
ming up  :  "  'A  groat '  is  a  common  word  belonging  to  our  mother 
tongue,  such  as  '  uttering,'  '  public  house,'  '  half  pint,'  and  many 
other  expressions ;  and  you  are  here  as  Englishmen,  to  use  your 
knowledge  of  your  own  language  ;  and  if,  understanding  the  matter 
without  any  evidence,  you  are  satisfied  that  a  four  penny  piece  and 
a  groat  are  the  same  thing,  then  the  prisoner  is  rightfully  indicted. 
It  is  very  true  that  a  groat  in  Edward  the  Third's  reign  weighed  a 
great  deal  more  than  a  four  penny  piece  does  now ;  and  so  it  is  with 
respect  to  other  coins.  Things  have  kept  their  names,  though  they 
have  changed  their  value." 

It  appears  that  the  jury,  upon  the  facts  in  the  case,  were  not  sat- 
isfied, beyond  a  reasonable  doubt,  that  a  groat  and  a  four  penny  piece 
were  one  and  the  same,  as  they  found  the  defendant  "not  guilty."1 

Articles  —  goods  —  how  identified. 

§  562.  One  of  the  modes  of  identifying  personal  property, 
whether  in  or  out  of  court,  is  by  appearance  of  the  property  itself, 
or  by  marks,  and  not  infrequently  by  both,  but  in  these  matters,  as 
in  many  others,  the  weight  of  the  testimony  must  generally  depend 
upon  the  knowledge  or  familiarity  of  the  witnesses  with  the  subject 
upon  which  they  speak.  And  if  the  witness  has  often  seen, 
handled  or  used  the  article  of  personal  property,  this  will  most  likely 
give  him  a  familiarity  with  such  article  which  will  enable  him  to 
1  Reg.  v.  Connell,  1  Carr.  &  K.  190  (1843). 

48 


378  THE  LAW  OF  IDENTIFICATION. 

testify  to  its  identity,  and  such  familiarity  alone  can  give  value  to 
his  testimony ;  articles  of  the  same  kind  or  nature  may  not,  and  gen- 
erally are  not.  distinguishable,  in  the  absence  of  such  lamiliarity. 
We  may  take,  for  instance,  money  of  the  various  kinds,  medals, 
jewelry,  a  watch,  a  pocket-book,  or  wearing  apparel  worn  by  the 
witness,  and  especially  if  there  should  be  any  marks  of  designation, 
or  other  peculiarities  about  the  article.  These  will  ever  enable  the 
witness  to  identify  them  with  a  greater  degree  of  certainty. 

Same  —  knowledge  or  opinion  —  reason. 

§  563.  In  ah1  cases,  the  witness  who  attempts  to  identify  either 
persons  or  things  should  be  able  to  give  some  reason  why  he  can 
swear  to  their  identity.  Every  identifying  witness,  to  give  credit 
and  value  to  his  testimony,  should  have  a  knowledge  or  an  opinion 
on  the  subject,  and  a  reason  therefor ;  otherwise,  as  a  rule,  his 
testimony  is  of  little  value,  because  the  jury  want  to  know,  and  have 
a  right  to  know,  his  reason  for  his  statement.  One  of  the  great  un- 
certainties of  personal  identity,  which  is  generally  a  mere  matter  of 
opinion,  and  frequently  unreliable,  is  given  by  Mr.  Wills,  and  he 
gives  a  statement  of  the  case  in  full,  which  I  have  not  space  to  insert. 
The  case  was  tried  three  times.  On  the  two  first  trials  the  jury  were 
unable  to  agree  as  to  the  identity  of  the  prisoner.  At  the  Assizes 
on  the  third  trial,  being  the  next  year,  the  prisoner  was  discharged  ; 
a  circumstance  believed  then  to  have  been  unparalleled  in  the  history 
of  English  jurisprudence.1 

Same  —  articles  —  general  appearance  —  marks. 

§  564:.  It  is  undoubtedly  ever  true  that  in  all  articles  of  a 
specific  nature  the  most  accurate  impression  of  identity  is  to  be 
found  by  the  witness  in  the  general  appearance  of  the  property  itself, 
the  confirmation  of  which  may  be  by  marks  for  a  better  designation. 
These  may  shed  a  ray  of  light  on  the  subject,  and  impart  a  strength 
and  value  to  the  testimony  of  the  identifying  witness ;  and  his 
testimony  may  be  further  strengthened,  and  its  value  greatly  en- 
hanced, if  the  article  is  familiar  to  him,  and  well  known,  by  pos- 
session, use  or  otherwise.  And  these  are  generally  sufficient,  be- 
cause he  can  give  a  reason  for  his  statement ;  and  it  shows  the  two 
first  important  things  to  be  considered  in  the  testimony  of  every 
witness:  first,  his  opportunities  for  observing  ;  and  second^  his  at- 

1  Wills Cir.  Ev.  106,  111.     And  see  Reg  v.  Newton,  Salop  Spring  Assizes,  1850. 


IDENTIFICATION  OF  PERSONAL  PROPERTY.  379 

tentiveness  in  observing;  these  are  cardinal  rules  of  evidence,  which 
impart  value  to  all  direct  testimony.  And,  indeed,  in  these  we  find 
the  sources  of  accurate  impression  —  information,  reliability. 

Same  —  questions  of  identity  —  appearances  —  mistake. 

§  565.  The  fact  of  identity  based  upon  the  general  appearance 
of  specific  property  is  not  always  to  be  relied  upon,  but  wants  con- 
firmation by  other  facts  which  the  jury  have  a  right  to  know.  And 
yet,  even  with  all  these,  the  most  discriminating  minds  are  not  in- 
frequently led  to  a  wrong  conclusion  in  questions  of  identity,  because 
it  is  possible  to  mistake  marks  and  peculiarities,  as  well  as  the  thing 
itself;  because  there  may  be  the  same  marks,  peculiarities  and 
characteristics  on  other  things  of  the  same  nature,  that  are  relied 
upon  to  distinguish  and  identify  ;  and  these  peculiar  coincidents  are 
liable  to  lead  into  error,  wrong  conclusion  and  mistaken  identity. 
Cases  of  this  kind  are  of  frequent  occurrence,  as  in  cases  of  money, 
especially  of  metallic  money,  or  of  medals,  all  struck  from  the  same 
die,  where  resort  is  had  to  marks  and  signs.  Where  two  different 
persons  claim  the  same  article  of  property,  both  relying  upon  the 
same  marks,  it  may  cause  even  experts  to  do  "curious  swearing," 
not  more  curious,  however,  than  we  often  see,  when  experts  disagree. 

Larceny  of  paper  money — identity  — presumption. 

§  566.  On  the  trial  of  an  indictment  for  the  larceny  of  paper 
money,  the  actual  production  of  the  money  on  the  trial  is  often  dis- 
pensed with,  to  a  considerable  extent,  where  there  are  other  circum- 
stances from  which  the  general  inference  of  guilt  may  be  drawn. 
Thus :  in  a  case  in  Massachusetts,  where  the  prisoner  had  been  indicted 
for  stealing  a  package  of  bank  bills  in  December,  it  was  held  that  evi- 
dence that  two  of  the  bills  (which  were  identified),  each  for  the  sum 
and  denomination  of  $100,  were  in  the  defendant's  possession,  one 
of  them  in  March,  and  the  other  in  April  following,  might  be  sub- 
mitted to  the  jury,  and  that  they  might  infer  therefrom,  and  from 
accompanying  circumstances,  that  he  stole  the  whole  package.  It 
was  also  held,  in  the  same  case,  that,  although  none  of  the  stolen 
bills  were  identified,  yet  that  evidence  was  admissible  to  prove  that 
the  defendant,  after  the  larceny,  was  in  possession  of  two  $100  bills 
like  those  that  were  proved  to  have  been  stolen,  and  also  of  a  large 
amount  of  bank  bills ;  and  that  such  evidence,  together  with  evi- 
dence that  the  defendant  was  destitute  of  money  before  the  larceny, 


380  THE  LAW  OF  IDENTIFICATION. 

might  be  submitted  to  the  jury,  to  be  considered  by  th3min  connec- 
tion with  other  accompanying  circumstances  indicative  of  his  guilt.1* 

Larceny — goods  —  mistaken  identity  of  goods. 

§  567.  There  is  often  a  mistake  in  the  identity  of  personal 
property  —  chattels — articles,  as  well  as  in  the  identity  of  persons, 
and  in  a  case  of  larceny,  the  mistake  in  the  one  may  prove  as  dis- 
astrous as  the  other,  to  the  interest  of  the  accused.  At  the  Spring 
Assizes  at  Bury  St.  Edmunds  in  1830,  a  respectable  farmer,  occupy- 
ing twelve  hundred  acres  of  land,  was  tried  for  a  burglary  and  steal- 
ing a  variety  of  articles.  Among  which  aUeged  to  have  been  stolen, 
were  a  pair  of  sheets  and  a  cask,  which  were  found  in  the  possession 
of  the  prisoner,  and  were  positively  sworn  to  by  the  witnesses  for 
the  prosecution,  to  be  those  which  had  been  stolen.  The  sheets  were 
identified  by  a  particular  stain,  and  the  cask  by  the  mark,  "  P.  C.  84  " 
inclosed  in  a  circle  on  the  end  of  it.  On  the  other  hand  a  number 
of  witnesses  swore  to  the  sheets  being  the  prisoner's,  by  the  same 
mark  by  which  they  had  been  identified  by  the  witnesses  on  the  other 
side,  as  being  the  prosecutor's.  With  respect  to  the  cask,  it  was 
proved  by  numerous  witnesses,  whose  respectability  left  no  doubt  of 
the  truth  of  their  testimony,  that  the  prisoner  was  in  the  habit  of 
keeping  cranberries  in  his  establishment,  and  that  they  came  in  casks, 
of  which  the  cask  in  question  was  one.  In  addition  to  this,  it  was 
proved  that  the  prisoner  purchased  his  cranberries  from  a  tradesman 
1  Com.  v.  Montgomery,  11  Mete.  534;  Burrill  Cir.  Ev.  658. 

•In  the  case  of  Com.  v.  Montgomery,  11  Mete.  534,  decided  in  1846,  DEWEY,  J.,  said:  "The 
objection  to  the  instructions  of  the  judge,  as  to  the  competency  of  the  evidence  of  the  posses- 
sion, by  the  defendant,  of  a  certain  portion  of  the  stolen  property,  after  the  period  of  time  that 
had  elapsed  between  the  time  of  the  alleged  larceny  and  such  possession  of  the  stolen  goods  by 
the  defendant,  is  not  well  founded.  We  understand  from  the  bill  of  exceptions  that  the  rule  of 
law  (Roscoe  Crim.  Ev.,  2d  Am.  ed.  17-20),  as  to  any  inferences  that  might  be  drawn  from  such 
evidence,  and  If  any,  to  what  extent,  was  stated  iu  accordance  with  the  principles  of  the  law  of 
evidence,  and  with  all  the  proper  distinctions  and  qualifications  as  to  a  recent  possession  or  one 
more  distant  from  the  time  of  the  alleged  larceny.  The  possession  of  a  part  of  the  stolen  prop- 
erty at  a  period  somewhat  distant  would  be  competent  testimony  to  be  submitted  to  the  jury, 
and  might,  with  other  sufficient  evidence,  tend  to  satisfy  them  of  the  guilt  of  the  party.  But  its 
weight  and  effect  are  very  different  from  that  of  evidence  of  possession  immediately  after  the 
larceny.  It  might  be  entirely  insufficient  to  raise  any  such  presumption  against  the  party  as 
would  call  upon  him  to  explain  his  possession.  The  further  objection  is,  that  the  judge  in- 
structed the  jury  that  the  possession  by  the  defendant,  of  two  |100  bills,  though  not  identified  as  a 
part  of  the  property  stolen,  was  still  a  circumstance  proper  for  theirconsideration,  as  tending  to 
show  large  sums  of  money  in  the  hands  of  the  defendant  subsequently  to  the  larceny.  Such  evi- 
dence maybe  competent.  Its  effect  may  be  very  slight,  and,  in  many  cases,  furnish  not  the  least 
ground  for  charging  a  party.  The  possession  of  a  large  sum  of  money,  with  strong  accom- 
panying circumstances  of  guilt,  of  an  independent  character,  accompanied  with  evidence  of  en- 
tire destitution  of  money  before  the  time  of  the  larceny,  may  properly  be  submitted  to  the  jury, 
to  be  considered  with  all  the  evidence  in  the  case.  We  understand  the  instructions  upon  this 
point  to  go  no  further  than  this." 


IDENTIFICATION  OF  PERSONAL  PROPERTY.  381 

in  Norwich,  whose  casks  were  all  marked  "  P.  C.  84,"  inclosed  in 
circles,  precisely  as  the  prisoner's  were,  the  letters  P.  C.  being  the 
initials  of  his  name,  and  that  the  cask  in  question  was  one  of  them. 
In  summing  up,  the  learned  judge  remarked,  that  this  was  one  of  the 
most  remarkable  and  extraordinary  cases  ever  tried,  and  that  it  cer- 
tainly appeared  that  the  witnesses  for  the  prosecution  were  mis- 
taken." The  prisoner  was  acquitted.1* 

Bank  notes  —non-production  —  parol  testimony. 

§  568.  In  New  York,  in  a  case  decided  in  1816,  the  defendant 
was  indicted  for  stealing  four  promissory  notes,  commonly  called  bank 
notes,  of  $50  each,  on  the  Mechanics'  Bank,  and  four  other  notes,  of 
$20  each,  aggregating  the  sum  of  $280,  the  property  of  one  Peleg 
Clark.  It  was  held  that  parol  evidence  of  the  contents  of  the  bills  or 
notes  was  admissible,  without  accounting  for  their  non-production,  or 
any  further  identification.2  In  a  civil  action  of  covenant  in  the  same 
State,  this  rule  was  held  in  1820.3  But  it  seems  now  that  the  bet- 
ter means  of  identifying  bills,  notes  or  other  instruments  is,  to  bring 

1 1  Wills  Cir.  Ev.  127.  3  Hardin    v.    Kretsinger,    17    Johns. 

2  People  v.  Holbrook,  13  Johns.  90.        293. 

*  Mr.  Burrill,  in  his  valuable  work  on  Circumstantial  Evidence,  lays  down  some  rules  well  worth 
remembering.  He  says,  at  p.  171:  "The  force  and  effect  of  coincidence,  in  its  general  result, 
always  depends  upon  the  number,  exactness  and  concurrence  of  the  several  particular  coinci- 
dences proved.  A  single  coincidence,  however  perfect  in  itself,  is  seldom  or  never  sufficient  as 
proof.  Thus;  in  the  first  of  the  above  examples,  the  two  facts  of  seven  sovereigns  lost  by  one  per- 
son, and  seven  sovereigns  found  in  the  possession  of  another,  though  coincident,  are  perfectly  con- 
sistent with  the  innocence  of  the  person  in  whose  possession  the  coins  are  discovered.  It  is  possi- 
ble, and,  in  a  large  assemblage  of  persons,  not  improbable,  that  two  or  even  more  individuals  might 
have  in  their  purses  identically  the  same  number  of  pieces  of  coin,  of  the  same  denominations. 
But  suppose  the  fact  to  be,  that  the  money  lost  or  taken  from  the  purse  of  the  one  individual  con- 
sistedx>f  the  following  varieties  in  combination: — One  penny,  two  six  pences,  three  shillings,  four 
half-crowns,  five  crowns,  six  half-sovereigns,  and  seven  sovereigns;  and  the  money  found  in  the 
purse  of  another  consisted  of  precisely  the  same  combination  of  corns.  Here  is  a  coincidence  com- 
posed of  seven  minor  and  exact  concurring  coincidences,  increasing,  to  a  very  high  degree,  the 
probability  of  the  supposition  that  the  corns  lost  or  taken  and  those  found  are  identically  the  same ; 
and  rendering  proportionately  improbable  the  supposition  of  an  accidental  coincidence,  and  a 
consequently  innocent  possession.  Indeed,  on  the  latter  supposition,  the  coincidence  would  be 
most  extraordinary ;  and  yet  in  the  absence  of  the  actual  proof  of  the  identity  of  any  part  of  the 
money,  and  of  any  other  circumstance  operating  against  the  accused,  it  would  not  amount  to 
legal  proof.  The  reason  given  is,  thatjhe  probability,  in  this  case,  however  high,  is  one  of  a 
definite  and  inconclusive  nature.  '  The  probability,1  observes  a  learned  writer,  '  that  the  corns 
lost  and  those  discovered  are  the  same  is  so  great,  that,  perhaps,  the  first  impulse  of  every 
person,  unaccustomed  to  this  kind  of  reasoning,  is,  unhesitatingly  to  conclude  that  they  cer- 
tainly are  so;  yet,  nevertheless,  the  case  is  one  of  probability  only,  the  degree  of  which  is  capable 
of  exact  calculation;  but  if  that  degree  of  probability,  high  as  it  is,  were  sufficient  to  warrant 
conviction  in  the  particular  case,  It  would  be  impossible  to  draw  the  distinction  between  the 
degree  of  probability  which  would  and  that  which  would  not  justify  the  infliction  of  penal  re- 
tribution in  other  cases  of  inferior  probability.  In  the  case  of  a  small  number  of  coins,  two  or 
three,  for  instance,  the  probability  of  their  identity  would  be  very  weak;  and  yet  the  two  cases, 
though  different  in  degree,  are,  in  principle,  the  same;  and  the  chance  of  identity  is,  in  both 
cases,  equally  capable  of  precise  determination.' " 


382  THE  LAW  OF  IDENTIFICATION. 

them  into  court,  or  to  account  for  tlieir  absence,  before  their  con- 
tents can  be  proven  by  oral  testimony.  And  this  is  not  requiring 
too  much. 

Same  —  goods  —  receiving  stolen  —  non-production. 

§  569.  In  Massachusetts,  in  1852,  one  Hills  was  indicted  for  re- 
ceiving and  aiding  in  the  concealment  of  stolen  goods.  One  Palmer, 
the  person  whose  property  was  alleged  to  have  been  stolen,  testified 
that  he  saw  a  certain  pair  of  pantaloons  on  one  Hilliard,  which  he 
examined,  and  found  on  them  certain  marks  by  which  he  knew  them 
to  have  been  once  his ;  that  he  did  not  take  the  pantaloons  from 
Hilliard,  but  for  some  reason  permitted  him  to  wear  them.  Palmer 
was  at  the  time  accompanied  by  an  officer,  and  they  took  the  cloth- 
ing found  on  several  other  persons,  and  claimed  by  Palmer.  The 
defendant's  counsel  objected  to  the  evidence  of  Palmer  respecting 
the  marks  upon  the  pantaloons,  the  same  not  being  produced,  but 
Hilliard  having  been  a  witness,  and  having  testified  that  he  bought 
the  pantaloons  which  Palmer  saw,  of  the  defendant,  and  that  they 
were  all  worn  out,  the  judge  admitted  the  evidence.  DEWEY,  J., 
remarked :  "  The  testimony  of  Palmer,  as  to  the  marks  on  the 
pantaloons  he  saw  on  Hilliard,  was  competent.  If  it  was  necessary 
to  show  any  reason  for  not  producing  them  before  the  admission 
of  this  evidence,  that  reason  was  furnished."1  And  on  the  trial  of 
an  indictment  for  stealing  goods  from  a  store,  the  prosecutor  may 
have  the  goods  shown  to  him  and  be  asked  whether  they  were  stolen 
from  his  store  at  a  certain  time.2 

Larceny  —  identity  of  goods  and  owner. 

§  570.  In  an  indictment  for  larceny  of  goods  alleged  to  have  been 
stolen,  it  is  indispensable  that  the  goods  shall  be  identified  ;  and  they 
must  also  be  proven  to  be  the  property  of  the  prosecutor,  or  al- 
leged owner,  as  charged  in  the  indictment ;  and  the  offense  may  per- 
haps be  complete  if  the  goods  were  taken  from  the  possession  of  a 
bailee.  But  it  seems  that  if  the  goods  are  stolen  from  a  thief,  by 
another  thief,  they  may  be  charged  and  proved  to  be  the  property  of 
the  real  owner,  and  yet  the  identity  of  the  goods  must  be  proven,  as 
well  as  the  ownership;  but  as  to  the  proof  of  the  ownership,  under  an 
act  of  English  Parliament  (14  and  15  Viet.,  chap.  100,  §  1),  the  indict- 
ment may  be  amended.  And  some  of  our  American  statutes  are 

1  Com.  v.  Hills,  10  Cusli.  530.  »  State  v.  Lull,  37  Me.  246. 


IDENTIFICATION  OF  PERSONAL  PROPERTY.  383 

equally  liberal  in  this  respect.  But  this  does  not  dispense  with  the 
necessity  of  identifying  both  the  goods  and  the  owner.  The  goods 
or  property  must  be  identified ;  there  must  be  an  owner;  if  so,  he 
must  be  identified  as  such ;  otherwise  there  can  be  no  larceny,  be- 
cause the  goods  or  property  stolen  must  be  the  property  of  another 
person. 

Same  —  extent  of  ownership  —  identity. 

§  571.  In  an  indictment  for  larceny,  the  owner  of  the  goods 
alleged  to  have  been  stolen,  of  course,  is  a  competent  witness 
to  prove  his  ownership  as  alleged  in  the  indictment,  and  thus, 
prove  his  own  identity  as  alleged ;  and  so,  a  hotel-keeper  in  whose 
hotel  goods  were  stolen  from  his  guest  may  prove  the  facts  as  al- 
leged in  the  indictment.1  Proof  that  the  alleged  owner  had  a  special 
property  in  the  goods,  or  that  he  held  it  in  trust  for  the  benefit 
of  another,  for  the  purpose  of  selling  it,  or  for  some  other  pur- 
pose, as  agent  or  bailee,  or  in  some  fiduciary  capacity,  will  be  suf- 
ficient to  support  the  allegation  of  ownership  in  an  indictment  for 
larceny,  upon  a  proper  identification.*  In  Georgia,  in  1846,  where 
the  property  in  a  negro  alleged  to  have  been  stolen  was  charged  in 
the  indictment  as  being  the  property  of  the  prosecutor,  evidence 
that  he  was  the  purchaser  of  the  slave  at  sheriff's  sale,  under  the 
incumbrance  of  a  mortgage,  after  condition  broken,  as  the  property 
of  the  prisoner,  coupled  with  the  lawful  possession,  was  held  sufii- 
cient  to  maintain  the  allegation.3  This  case  was  peculiar  in  many 
respects. 

Indictment  —  larceny  —  description  —  name  of  owner. 

§  572.  An  indictment  for  stealing  a  black  horse  will  not  be  sup- 
ported by  evidence  which  shows  that  the  horse  was  one  of  another 
color,  for  the  allegation  of  color  is  descriptive  of  that  which  is  legally 
essential  to  the  offense  and  cannot  be  rejected.4  And  an  indictment 
for  stealing  nineteen  shillings  in  money  of  the  moneys  of  A.  B.  will 
not  be  supported  by  evidence  that  the  prisoner  stole  a  sovereign  in 
gold.5  But  such  a  variance  between  the  statement  and  the 
proof  is  now  amendable  in  England.  And  where  an  indictment  for 
stealing  a  bank  note  described  it  as  signed  by  A.  H.  for  the  governor 
and  company  of  the  Bank  of  England,  it  was  held  by  the  judges  that 
there  could  be  no  conviction  without  evidence  of  the  signature  of  A. 

Salisbury  v.   State,     6   Conn.  101;        3  Robinson  v.  State,  1  Kelly  (Qa.),  563. 
United  States  v.  Williams,  1  Ware,  175.        4  2  Archb.  Cr.  PI.  &  Ev.  226. 
3  State  v.  Somerville,  21  Me.  14.  B  2  Archb.  Cr.  PI.  &  Ev.  226. 


384  THE  LAW  OF  IDENTIFICATION. 

H.1  Where  the  goods  and  chattels  of  J.  N.  were  alleged  to  have 
been  stolen,  it  must  be  proved  upon  the  trial  that  the  goods  are  the 
absolute  or  special  property  of  the  person  thus  named  in  the  indict- 
ment. If  he  be  misnamed,  if  the  name  thus  stated  be  not  either 
his  real  name  or  the  name  by  which  he  is  usually  known,  or  if  it  ap- 
pear that  the  owner  of  the  goods  is  another  and  a  different  person 
from  him  thus  named  as  such  in  the  indictment,  the  variance,  un- 
less amended,  will  be  fatal,  and  the  defendant  must  be  acquitted.2 
So,  if  he  be  described  in  the  indictment  as  a  certain  person  to  the 
jurors  unknown,  and  it  appear  in  evidence  that  his  name  is  unknown, 
if  the  name  by  which  the  prosecutor  is  well  known  be  used,  it  will 
be  sufficient,  as  where  "  John  Walter  Hancock  "  was  called  in  the 
indictment  "  John  Hancock,"  by  which  name  he  was  usually  called 
and  known,  PARK,  J,,  held  it  to  be  sufficient.3 

Chattels  —  cards  —  in  court  —  inspection. 

§  573.  It  is  for  the  purposes  of  identification  that  the  goods  and 
chattels  are  frequently  brought  into  court  and  examined  in  the  pres- 
ence of  the  jury  to  enable  them  to  determine  the  question  in  issue  ; 
but  in  Maryland,  contrary  to  the  general  rule,  in  an  action  of  cov- 
enant, it  was  held  that  the  party  was  not  entitled  to  produce  the 
chattel  in  court  in  order  to  prove  the  injury  by  an  inspection  thereof, 
but  that  the  injury  must  be  proved  by  witnesses  who  testify  before 
the  jury.4  This  is  certainly  not  the  rule  of  practice,  either  in  this 
country  or  in  England.  An  action  was  brought  to  recover  a  penalty 
of  defendant,  as  a  broker,  for  acting  as  such  without  having  pro- 
cured a  license  therefor.  To  prove  that  the  defendant  acted  as  a 
broker,  a  witness  produced  one  of  the  cards  of  defendant  and  his 
partner,  "  Capp  &  King,  Ship's  Brokers,  Etc."  ABBOTT,  C.  J.,  said : 
"  This  card  cannot  be  given  in  evidence,  unless  it  was  received  from 
the  defendant  himself  ;  the  proper  way  is,  to  give  the  defendant  no- 
tice to  produce  his  cards,  and  then  prove  one  as  a  copy,  or  give  parol 
evidence  of  the  contents."8 

Dog  in  court  for  identification  —  premises. 

§  574:.  An  action  of  trespass  was  brought,  in  England,  against  a 
defendant  for  seizing  and  detaining  a  dog.  Notice  was  given  to  the 
defendant  to  produce  the  dog  in  court  at  the  trial ;  when  called  upon 

1  2  Archb.  Cr.  PI.  &  Ev.  226.  8  2  Arcbb.  Cr.  PI.  &  Ev.  342. 

s  2  Archb.  Cr.  PI.  &  Ev.  842.  4  Jacobs  v.  Davis,  84  Md.  204. 

•  Clark  v.  Capp,  1  Carr.  &  P.  199. 


IDENTIFICATION  OF  PERSONAL  PEOPEETY.  385 

in  the  course  of  the  trial  to  show  up  with  the  dog,  he  respectfully  de- 
clined to  bring  the  animal  to  the  bar  for  identification.  He  insisted 
upon  his  right  to  use  the  dog  to  defend  the  case,  and  put  in  evidence 
for  hia  defense,  but  the  court  permitted  the  plaintiff  to  call  the  dog, 
and  let  him  in  as  evidence.  ABINGER,  C.  B.,  said:  "  That  cannot 
be  done ;  the  only  object  which  the  defendant  could  have  in  produc- 
ing the  dog  as  a  part  of  his  own  case  was  in  substance  to  contradict 
the  description  which  the  plaintiff's  witnesses  gave  of  his  marks."1 
But  it  is  held  to  be  improper  for  the  jury  to  leave  the  court-room  in 
search  of  evidence  during  a  trial.  A  defendant  in  Louisiana  was 
convicted  of  burglary.  In  the  midst  of  the  trial,  on  motion  of  the 
State,  the  judge  a  quo^  directed  the  jury  to  retire  from  the  court- 
room and  visit  and  inspect  the  premises  where  the  burglary  was  al- 
leged to  have  been  committed.  He  directed  a  witness  for  the  State 
to  accompany  the  jury  and  point  ont  the  place  marked  out  on  the 
diagram  of  the  premises,  which  the  witness  had  testified  to  the  day 
before,  and  which  the  State  had  offered  in  evidence,  and  the  defend- 
ant was  not  permitted  to  accompany  the  jury.  For  this  reason  a 
new  trial  was  awarded.2  Under  some  circumstances,  in  the  trial 
of  a  civil  action,  and  by  consent  of  parties,  perhaps  such  a  course 
might  be  permitted. 

Machine  for  inspection  —  and  a  dog. 

§  575.  In  an  action  to  recover  for  injuries  alleged  to  have  been 
inflicted  by  a  machine,  the  court  had  no  power  to  compel  the  de- 
fendant to  permit  the  attorney  on  the  other  side  to  inspect  the  ma- 
chine to  enable  him  to  conduct  the  cross-examination.  Upon  an 
affidavit  made  by  plaintiff's  attorney,  stating  that  he  could  not  cross- 
examine  his  client  on  the  examination  before  trial,  or  comprehend 
such  examination  without  a  previous  inspection  of  the  machine,  an 
order  was  made  directing  the  defendant  to  allow  the  inspection  to 
be  made.  It  was  held  that  the  court  had  no  power  to  make  such  an 
order.3  And  in  New  York,  upon  the  trial  of  an  action  for  the 
breach  of  a  warranty  for  the  sale  of  a  chattel,  it  was  held  that  a  ius- 
tice  of  the  peace  had  no  power  to  compel  the  party  in  possession  to 
produce  the  chattel  in  court  for  inspection,  by  the  use  of  a  subpoena 
duces  tecum,  or  by  any  other  means  in  the  power  of  the  court.4 
In  an  English  case  in  1862,  it  was  alleged  that  the  defendant  wrong- 

1  Lewis  v.  Hartley,  7  Carr.  &  P.  405.          3  Cooke  v.  Lalance,  etc.,  Co.,  3  N.  T. 

2  State  v.  Bertin,  24  La.  Ann.  46.  Civ.  Proc.  332. 

4  Hunter  v.  Allen,  35  Barb.  42. 
49 


386  THE  LAW  OF  IDENTIFICATION. 

fully  and  knowingly  kept  a  fierce  and  mischievous  dog  which  bit 
and  wounded  the  plaintiff.  It  was  held  to  be  necessary  to  prove 
that  he  has  injured  the  plaintiff,  and  was  used  to  injure  people,  and 
a  mere  habit  of  bounding  upon  and  seizing  persons,  not  so  as  to  hurt 
or  injure  them,  though  causing  some  annoyance  and  trivial  accidental 
damage  to  clothes,  would  not  sustain  the  action.  It  was  also  held 
that  the  dog  may  be  brought  into  court  and  shown  to  the  jury  to 
assist  them  in  judging  of  his  temper  and  disposition.  ERLE,  C.  J., 
said :  "  When  I  last  went  upon  circuit  with  the  late  lamented  Lord 
Chief  Justice  CAMPBELL,  I  recollect  that  in  a  similar  case  his  lord- 
ship allowed  the  dog  to  be  brought  into  court.  I  see  no  objection 
to  it.  The  dog  was  accordingly  brought  in,  led  by  his  keeper  with 
a  chain.  The  jury  had  him  brought  up  to  them,  and  at  their  desire 
the  keeper  let  go  of  him.  They  examined  him,  and  appeared  to  be 
of  opinion  that  from  the  expression  of  his  eye  and  other  indications, 
he  was  not  of  a  vicious  disposition.  And  there  was  a  verdict  for 
the  defendant.1 

Chattels  in  court  for  identification  —  rule  in  England. 

§  576.  In  an  English  case  passing  through  the  papers  in  the  spring 
of  1876,  it  is  stated  that  Priscilla  Wolfe,  a  widow  lady  of  independ- 
ent means,  residing  at  Kilsby,  near  Rugby,  sued  Richard  Jones,  a 
butcher  of  the  same  place,  for  £5  damages,  for  illegally  killing  a 
cockatoo  parrot  belonging  to  her.  The  defense  was  that  the  de- 
fendant shot  the  cockatoo,  mistaking  it  for  an  owl.  The  fellow-bird 
of  the  deceased  cockatoo  was  brought  into  court,  and  afforded  great 
amusement  by  strongly  recommending  the  parties  to  "  shake  hands," 
"shut  up,"  and  asking  for  "sugar."2  Animals  may  sometimes  be 
brought  into  court  for  identification,  or  for  inspection,  as  in  the  case 
of  the  mischievous  dog  which  was  brought  before  the  jury  for  their 
examination  as  to  his  disposition  and  determination,  as  to  whether 
the  said  canine  was  quiet  and  free  from  vice.3* 

1  Line  v.  Taylor,  3  Post.  &  Fin.  731.  3  Line  v.  Taylor,  3  Fost.  &  Fin.  731.    ' 

1  Whart.  Crim.  Ev.  (8th  ed.),  g  312, 
note. 

*  In  the  above  case  (Line  v.  Taylor,  tupra)  appears  the  following  note:  "  The  case  is  worth 
noting,  not  only  as  deciding  a  point  of  law  as  to  the  right  of  action,  but  as  illustrating  a  point 
of  niti  priiu  practice,  and,  perhaps,  as  throwing  some  light  upon  the  probable  construction  of 
an  important  clause  in  the  C.  L.  P.  Act,  1854,  $  58,  as  to  inspection  by  jury  or  witnesses  of 
any  real  or  personal  property  which  may  be  material  to  the  proper  determination  of  the  ques- 
tion in  dispute ;  which  it  can  hardly  be,  of  course,  unless  it  belongs  to  or  is  in  the  possession  of 
one  or  the  other  of  the  parties  to  the  suit;  and  may  be  in  such  case  in  many  ways,  as  with  refer- 
ence to  forgery,  identity,  value  or  utility  —  or  as  in  this  instance,  in  the  case  of  «mimftiqt  temper 


IDENTIFICATION  OF  PERSONAL  PROPERTY.  387 

Inspection  —  portable  goods  in  court. 

§  577.  For  the  identification  of  personal  property,  such  things  as 
are  portable  are  often  brought  into  court  for  examination,  such  as 
stolen  goods  found  in  the  possession  of  a  thief  or  burglar,1  and  bur- 
glar's tools  and  implements  used  in  his  trade.2  The  weapons  used 
by  a  murderer,  models  of  inventions  in  patent  cases,  and  even  chil- 
dren in  cases  of  bastardy,3  and  specimens  of  handwriting,  and  pam- 
phlets and  other  publications  in  actions  for  slander  and  libel,  and 
numerous  other  things  are  brought  before  the  court  and  jury  for  in- 
spection and  identification.  A  party  was  indicted  in  England  for 
publishing  an  obscene  libel,  in  offering  for  sale  a  snuff-box  contain- 
ing an  indecent  painting ;  a  witness  testified  that  defendant  exhibited 
to  him  the  box  produced  on  the  trial,  or  a  box  exactly  similar.  This 
was  held  not  sufficient  —  the  witness  must  identify  it  as  the 
very  box  exhibited  tohim.  PARK,  J.,  said  :  "  If  the  jury  are  not 
satisfied  by  the  evidence  that  this  was  the  identical  snuff-box  offered 
by  the  prisoner,  he  must  be  acquitted.  It  is  absolutely  essential 
that  the  box  itself  shall  be  shown  to  be  the  very  same,  which  is  not 

'  Jupitz  v.  People,  34  111.  516.  3  Risk  v.  State,  19  Ind.   152;  State  v. 

2  Com.  v.  Webster,  5  Cash.  295.  Britt,  78  N.  C.  439. 

and  disposition.  It  will  be  observed  that  though  the  plaintiff  had  given  notice  to  produce  the 
dog,  it  might  be  doubtful  how  far  he  could,  under  an  order  to  produce,  call  for  any  thing  but 
books,  papers  or  documents;  and  the  dog  was  produced  by  the  other  party,  the  defendant.  But 
it 'seems  clear,  that  under  the  above  clause,  the  plaintiff  might  have  had  inspection  before  trial, 
or  perhaps  at  the  trial  by  the  jury  and  witnesses.  A  view,  it  will  be  observed,  applies  to  real 
property,  fixed  and  immovable,  and  such  as  could  not  be  brought  into  court;  and  of  which, 
therefore,  as  in  cases  of  inscriptions  or  notices  fixed  to  walls,  so  as  to  not  be  removable,  parol 
evidence  is  admissible.  And  a  vieio  applies  also  only  to  juries.  There  can  be  but  little  doubt 
that  the  clause  is  meant  to  be  construed  by  analogy  to  the  old  law  as  to  viete,  and  will  be  applied 
in  cases  where,  it  the  property  were  real,  a  view  might  be  obtained;  as  a  view  is  allowed  where 
the  property  is  immovable,  but  is  so  far  material  as  to  necessitate  evidence  by  witnesses  as  to  its 
nature,  state,  value  and  the  like.  Turquand  v.  Strand  Union,  8  D.  P.  C.  201.  There  is  a  similar 
jurisdiction  in  equity  even  to  the  extent  of  allowing  t^sts  to  be  applied.  Twentyman  v.  Barnes, 
2  DeGex  &  S.  225,  and  in  a  similar  provision  in  the  Patent  Act,  15  and  16  Viet. ,  chap.  82,  §  42,  as 
to  which,  see  Patent  Type  Company  v.  Harrison,  29  L.  J.  Ex  219;  Holland  v.  Fox,  3  E.  &  B.  977, 
If,  for  any  reason,  the  property  cannot  conveniently  be  brought  into  court,  as  in  this  case,  if 
there  had  been  any  reason  really  to  suppose  danger,  or  if  the  animal  had  been  a  bull,  the  above 
clause  would  probably  be  applied,  to  allow  the  inspection  out  of  court.  But  wherever  the 
property  can  conveniently  be  produced  in  court,  that  course  can  be  followed  with  or  without 
previous  inspection  And  on  the  other  hand,  it  should  seem  that  wherever  the  state  of  the 
property  Is  so  far  material  that,  if  immovable,  the  court  would  allow  a  view,  and  admit  evi- 
dence about  it;  and,  if  movable,  it  would  be  producible  in  court,  then  the  court  can  and 
probably  will  allow  an  inspection  before  trial  by  the  party  and  his  witnesses." 

In  Kerr  on  Homicides  at  section  346,  it  is  said:  ' '  Where,  during  the  Tprogress  of  a  trial  for 
any  of  the  various  degrees  of  homicide,  on  application,  the  court  grants  an  inspection  of  the 
premises,  where  the  homicide  is  alleged  to  have  been  committed,  the  accused  must  be  permitted 
to  attend  such  inspection;  because,  to  allow  such  examination  to  be  made  out  of  the  presence 
and  in  the  absence  of  the  accused,  would  be  a  violation  of  his  constitutional  rights  and  a  ground 
for  reversal."  Citing  State  v.  Berlin,  24  La.  Ann.  46  (1872).  See  Benton  v.  State,  30  Ark.  328 
(1875);  State  v.  Sanders,  68  Mo.  202  (1878);  Carroll  v.  State,  5  Neb.  31  (1876);  Eastwood  v.  Peo- 
ple, 3  Park.  (N.  Y.)  25  (1855).  Compare  State  v.  Adams,  20  Kans.  311  (1878). 


388  THE  LAW  OF  IDENTIFICATION. 

done  in  this  case."1  Mr.  Wharton  gives  the  following  illustration 
from  Jessop's  edition  of  North's  Autobiography  (1887):  It  is  said 
of  Saunders,  "a  good  humored  barrister"  of  monstrous  bulk,  and 
much  given  to  drink,  that  he  was  present  at  a  trial  in  which  the 
excisable  value  of  brandy  was  in  issue,  and  in  which  several  speci- 
mens were  produced  for  inspection.  The  judge  tasted,  the  jury 
tasted,  and  Saunders,  seeing  the  phials  moving,  took  one,  set  it  to 
his  mouth  and  drank  it  all  off.  The  court,  observing  the  pause  and 
some  merriment  at  the  bar,  about  Saunders,  called  to  Jeffries  (coun- 
sel in  the  case)  to  go  on  with  his  evidence.  My  lord,  said  he,  we  are 
at  a  full  stop,  and  can  go  no  further.  "  What's  the  matter,"  asked 
the  chief.  Jeffries  replied.  "  Mr.  Saunders  has  drank  up  all  our 
evidence."2 

Comparison  of  articles  —  in  and  out  of  court. 

§  578.  The  identity  of  articles  by  comparison  may  often  present 
a  question  as  difficult  and  doubtful  as  that  of  the  identity  of  hand- 
writing. Mr.  Taylor,  in  his  valuable  work  on  Evidence,  treating  of 
this  subject,  makes  the  following  wise  suggestion  at  section  555  : 
"  These  observations  apply  to  all  cases  in  which  the  guilt  or  inno- 
cence of  a  prisoner  depends  upon  the  identity  or  comparison  of  two 
articles  found  in  different  places ;  as  for  example,  the  wadding  of  a 
pistol  with  portions  of  a  torn  letter  found  on  the  person  of  the  accused} 
or  the  fractured  bone  of  a  sheep,  with  mutton  found  in  his  house,  or 
fragments  of  dress  with  his  rent  garment,  or  damaged  property  with 
the  instrument  by  which  the  damage  is  supposed  to  have  been 
effected.  In  all  these,  and  the  like  cases,  it  is  highly  expedient,  if 
possible,  to  produce  to  the  court  the  articles  sought  to  be  compared ; 
and  although  the  law,  in  demanding  the  production  of  the  best  evi- 
dence, does  not  expressly  require  that  this  course  shah"  be  adopted  j 
but  permits  a  witness  to  testify  as  to  his  having  made  the  compari- 
son without  first  proving  that  the  article  cannot  be  produced  in 
court  at  the  trial ;  their  non-production,  when  unexplained,  may 
often  generate  a  suspicion  of  unfairness,  and  will  always  furnish  an 
occasion  for  serious  comment."  Again,  he  says  in  regard  to  the 
jurors  in  his  country,  which  is  true,  judging  from  what  the  English 
court  has  said  of  them  at  section  559  :  "  Though  evidence  ad- 
dressed to  the  jurors,  if  judiciously  employed,  is  obviously  entitled 
to  the  greatest  weight,  care  must  be  taken  not  to  push  it  beyond  its 

1  Rex  v.  Rosenstein,  2  Carr.  &  P.  414.        9 1  Wliart.  Ev.  (3d  ed.),  §  847,  note. 


IDENTIFICATION  OF  PERSONAL  PROPERTY.  389 

legitimate  extent.  The  minds  of  jurymen,  especially  in  the  remote 
provinces,  are  grievously  open  to  prejudices,  and  the  production  of 
a  bloody  knife,  a  bludgeon,  or  a  burnt  piece  of  rag,  may  sometimes, 
by  exciting  the  passions,  or  enlisting  the  sympathies  of  the  jury, 
lead  them  to  overlook  the  necessity  of  proving  in  what  manner  these 
are  connected  with  the  criminal  or  the  crime ;  and  they  consequently 
run  no  slight  risk  of  arriving  at  conclusions,  which,  for  want  of 
some  link  in  the  evidence,  are  by  no  means  warranted  by  the  facts 
proved."  The  same  observations  will  doubtless  apply  with  equal 
force,  and  to  the  same  extent,  to  jurymen,  indiscriminately  chosen 
in  our  country,  at  least  in  some  of  our  States ;  and  too  much  caution 
cannot  be  observed  in  giving  in  charge  to  them  the  proper  rule  for 
their  guidance. 

Damages  —  machinery  —  in  court  to  identify. 

§  579.  In  an  action  against  a  railroad  company  to  recover  dam- 
ages for  injuries  resulting  from  the  breaking  of  an  iron  hook,  and 
the  falling  of  a  mast  to  a  derrick  belonging  to  the  defendant,  on  an 
allegation  of  negligence  in  not  furnishing  a  sufficient  hook,  plaintiff 
produced  a  piece  of  iron,  which  his  evidence  tended  to  show  was  a 
part  of  the  broken  hook ;  and  after  the  testimony  of  experts  had 
been  received  as  to  the  weakness  of  the  iron,  it  was  shown  to  the 
jury,  being  thus  identified.  This  was  held  to  be  admissible.1  In 
another  action  against  a  railroad  company,  to  recover  damages  for 
injuries  resulting  in  the  death  of  plaintiff's  intestate,  aged  fourteen 
years,  who  was  run  over  on  the  street  and  killed  by  one  of  defend- 
ant's locomotives,  in  crossing  a  street  in  New  York,  in  returning 
from  a  store  where  she  had  been  to  make  some  purchases,  the 
witness,  McCorinick,  was  asked,  "  whether  from  a  certain  position 
the  interior  of  the  yard  can  be  seen  so  as  to  observe  the  first  northern 
track,  and  as  to  the  ringing  of  the  bells."  This  was  claimed  to  be 
error,  as  calling  for  the  opinion  of  the  witness.  DALY,  Ch.  J.,  said  : 
"  It  is  insisted  that  it  was  for  the  jury,  and  not  for  the  witness,  to 
judge  whether  he  could,  from  the  position  he  occupied,  hear  the  bell. 
It  was  for  the  jury  to  determine  whether  the  bell  was  rung  or  not ; 
but  as  to  the  witness'  faculty  of  hearing,  he  knew  better  than  the 
jury  could  possibly  know  how  far  he  could  hear  the  ringing  of  the 
bell  of  a  locomotive.  He  knew  that  at  a  certain  distance  from  a 
locomotive  which  he  saw  passing,  he  could  hear  the  ringing  of  its 
1  King  v.  R.  Co.,  72  N.  Y.  607. 


390  THE  LAW  OF  IDENTIFICATION. 

bell,  and  could  swear  to  that  as  a  fact.  It  was  not  testifying  that 
he  must  have  heard  it  if  it  were  rung,  but  simply  as  to  his  ability  to 
hear  the  ringing  of  such  a  bell  at  a  given  distance,  which  was  testi- 
mony to  go  to  the  jury  for  what  it  was  worth.  It  is  often  difficult 
to  determine  the  line  of  demarcation  which  separates  the  expression 
of  an  opinion  from  the  statement  of  a  fact ;  and  this,  in  my  judg- 
ment, was  the  statement  of  a  fact."1 

Belief  of  facts  according  to  evidence. 

§  580.  The  case  of  "  the  Amber  Witch,"  as  translated  and  as  given  by 
Mr.  Taylor  in  his  work  on  Evidence,  section  557,  illustrates  the  danger 
that  not  only  jurors  but  courts  will  arrive  at  conclusions  without 
evidence  to  warrant  them,  especially  in  cases  of  identity  —  that  most 
difficult  question  with  which  the  courts  and  jurors  have  to  deal.  The 
author  says :  "  In  the  interesting  story  of  '  the  Amber  Witch,'  the 
poor  girl  charged  with  witchcraft  —  after  complaining  that  she  was 
the  victim  of  the  sheriff,  who  wished  to  do  '  wantonness  with  her' — 
added,  that  he  had  come  to  her  dungeon  the  night  before  for  that 
purpose,  and  had  struggled  with  her,  '  whereupon  she  had  screamed 
aloud,  and  had  scratched  him  across  the  nose,  as  might  yet  be  seen, 
whereupon  he  had  left  her.'  To  this  the  sheriff  replied,  '  that  it 
was  his  little  lap-dog,  called  Below,  which  had  scratched  him  while 
he  played  with  it  that  very  morning ; '  and  having  produced  the 
dog,  the  court  was  satisfied  with  the  truth  of  his  explanation." 
When  courts  will  thus  abuse  this  kind  of  evidence,  what  can  be  ex- 
pected of  jurors  in  our  rural  districts  ?  It  must  be  a  source  of  the 
greatest  injustice  in  many  instances.  The  only  true  rule  is  to  be- 
lieve a  fact  according  to  evidence.  And  it  may,  perhaps,  be  safe  to 
lay  down  a  rule  something  like  the  following:  1.  To  believe  a 
thing  without  sufficient  evidence  is  credulity.  2.  To  believe  beyond 
evidence,  enthusiasm.  3.  To  believe  contrary  to  evidence  is  super- 
stition ;  and  4.  To  not  believe  according  to  evidence  is  infidelity. 
It  may  not  be  amiss  in  this  connection  to  give  a  rule  somewhere 
used  for  testing  a  witness,  and  which  is  generally  necessary  and 
always  applicable ;  though  the  witness  be  of  high  repute  and  un- 
doubted veracity.  He  may  demean  himself  in  a  manner  that  in- 
spires the  highest  confidence,  without  a  doubt  lurking  upon  his 
countenance  to  shed  suspicion  upon  his  sincerity  ;  yet  the  court  and 
jury  will  do  well  to  know  :  1.  His  opportunity  of  observing  (what 
1  Casey  v.  R.  Co.,  8  Daly,  220. 


IDENTIFICATION  OF  PEESONAL  PROPERTY.  391 

he  states).  2.  His  attentiveness  in  observing.  3.  The  power  of  his 
intellect.  4.  The  strength  of  his  recollection;  and  5.  His  disposi- 
tion to  speak  the  truth.  And  especially  is  this  true  in  the  difficult 
questions  of  identity. 


CHAPTEK  XIV. 

VIEW  OF  PREMISES  BY  JURY. 

SEC.  SEC. 

581.  When  the  jury  may  view  the  prem-    588.  View  of  highway  —  rule  in  Massa- 

ises.  chusetts. 

582.  Civil  cases — England  and  America.  589.  Same  —  view  —  railroad  bridge  — 

583.  Larceny  —  view  of  a  hog  —  error.  wreck. 

584.  Burglary  —  jurors    viewing    the  590.  Photographic  views  —  rule  in  New 

premises.  York. 

585.  Same  — murder — rule  in  Arkansas    591.  Inspection  —  ancient  and  modern. 

and  Georgia.  rules. 

586.  Same— burglary— rule  in  Louisiana.     592.  View  of  premises  —  civil  actions — 

587.  Jurors  —  knowledge  acquired  by  ejectment. 

inspection. 

When  the  jury  may  view  the  premises. 

§  581.  In  criminal  cases  it  appears  that  the  jury  were  not  permitted 
to  view  the  premises  where  the  crime  was  alleged  to  have  been  com- 
mitted, unless  it  was  authorized  by  statute.  It  was  not  permitted 
by  the  common  law,  because  the  jury  could  not  or  should  not  act  on 
the  case  except  upon  information  received  by  the  evidence  given  in 
court.  The  question  was  presented  in  a  murder  trial  in  Massachu- 
setts in  1829,  and  it  was  refused,  though  moved  for  by  the  prisoner 
and  consented  to  by  the  attorney-general.  But  on  the  second  trial 
of  the  same  case,  the  jury  made  the  request  that  they  be  permitted 
to  see  the  place  of  the  murder,  and  both  parties  consented,  and  the 
court  hesitated,  but  finally  granted  the  request.  "  Because,"  the 
court  said,  "  this  course  was  without  precedent,  and  if  it  should  turn 
out  to  be  incorrect,  they  had  doubts  whether  they  could  hold  the 
prisoner  to  his  consent."  And  in  this  case,  the  court  directed  that 
no  person  should  go  with  the  jury,  except  the  officers  having  them 
in  charge,  and  that  no  person  should  speak  to  them  under  penalty  of 
a  contempt.  Plans  were  exhibited  and  explained  to  the  jury  in 
court,  and  they  were  permitted  to  take  them  with  them  to  aid  them 
in  making  the  view.1 

Civil  cases  —  England  and  America. 

§  582.  A  view  of  the  premises  was  granted  in  England  in  civil 
cases,  but  that  was  granted  under  the  provisions  of  a  statute.2  Many 

1  Com.  v.  Knapp,  9  Pick.  515.  See  Geo.  II,  chap.  25,  §  14;  Com.  Dig., 
Eev.  Stat.  Mass.,  chap.  187,  §  10.  View,  A. 

*  Stat.  4  Anne,  chap.  16,  g  8;  Stat.  8 


VIEW  OF  PREMISES  BY  JURY.  393 

of  our  American  States  have  statutes  making  similar  provisions  in 
civil  cases.  But  under  these  statutes  it  is  often  a  matter  of  discre- 
tion, and  the  court  may  or  may  not  permit  it,  and  this  discretion  is  not 
generally  reviewable  on  appeal,  except  in  cases  where  there  has  been 
an  abuse  of  power.1  In  Iowa,  in  a  proceeding  to  condemn  land  for 
a  railroad,  a  map  was  used  upon  the  trial  showing  the  farm  and  the 
right  of  way  through  it,  and  a  full  description  was  given  by  the  wit- 
nesses of  the  premises ;  the  court  held  that  a  view  of  the  farm  was 
not  necessary  to  enable  the  jury  to  understand  and  properly  apply 
the  evidence  in  this  case,  and  reach  a  just  determination  of  the  rights 
of  the  parties.2  And  similar  rules  prevail  in  courts  of  equity. 

Larceny  —  view  of  a  hog  —  error. 

§  583.  But  as  we  have  seen,  in  criminal  trials  viewing  will  seldom 
be  permitted  in  the  absence  of  a  statute  authorizing  it.  The  statute 
of  Massachusetts  of  1843  authorized  a  view  of  the  premises,  and 
it  was  permitted  in  the  noted  Webster  trial  in  1850.  The  jury  tak- 
ing a  view  of  the  medical  college,  attended  by  two  officers  and  one 
counsel  on  each  side.3  In  Texas  in  the  absence  of  a  statute,  on  a 
trial  for  the  larceny  of  a  hog,  it  was  held  that  for  the  court  to  per- 
mit a  view  was  error,  and  the  cause  was  reversed.  There  arose  a 
controversy  as  to  the  identity  of  the  hog  alleged  to  have  been  stolen, 
and  the  jurors  were  permitted  by  the  court  to  leave  the  court-room 
during  the  trial,  and  to  inspect  the  animal  to  aid  them  as  to  the 
identity  and  ownership.4 

In  Oregon,  on  the  trial  of  an  indictment  for  murder,  it  was  held 
that  when  the  jury,  by  agreement  of  counsel  and  by  direction  of  the 
court,  visited  the  scene  of  the  murder  and  also  the  county  jail,  with- 
ont  the  presence  of  the  prisoner,  this  was  not  a  reason  why  the  sent- 
ence of  the  law  should  not  be  pronounced  upon  him.5  Mr.  Wharton 
says :  "  The  practice  which  obtains  in  civil  suits,  in  permitting  the 
jury  to  visit  the  scene  of  the  res  gestce  is  adopted  in  criminal  issues 
whenever  such  a  visit  appears  to  the  court  important  for  the  elucida- 
tion of  the  evidence.  The  visit,  however,  should  be  jealously 
guarded,  so  as  to  exclude  interference  by  third  parties,  and  should 
be  made  under  sworn  officers.  Such  view  may  be  granted  after  the 
judge  has  summed  up  the  case.  But  where  only  a  part  of  the 

1  Boardman  v.  Ins.  Co.,  54  Wis.  364;        3  Com.    v.  Webster,  5  Cash.   (Mass.) 
Pick  v.  Rubicon,  etc.,  Co.,  27  id.  446.        295,  298. 

2  Clayton  v.  R.  Co.,  67  Iowa,  238.  4  Smith  v.  State,  42  Tex.  444. 

5  State  v.  Moran,  15  Oreg.  262. 

50 


394  THE  LAW  OF  IDENTIFICATION. 

jury  visited  the  premises,  and  this  after  the  case  was  committed  to 
the  jury  for  their  final  deliberation,  this  was  held  ground  for  a 
new  trial.  The  visit  also  must  be  made  in  the  presence  of  the  ac- 
cused, who  is  entitled  to  have  all  evidence  received  by  the  jury,  taken 
in  his  presence."1  There  are  several  views  presented  upon  this 
subject,  each  having  a  reason  to  support  it.  And  as  the  courts  are 
not  agreed,  perhaps  the  best  we  can  do  is  to  examine  the  weight  of 
the  authority  by  the  reasons  offered  on  either  side. 

Burglary  —  jurors  viewing  the  premises. 

§  584.  One  Adams  and  three  others  were  indicted  for  burglary, 
and  Adams  put  on  trial.  The  statute  authorized  an  inspection  of  the 
premises,  and  the  jury  to  make  the  visit  in  charge  of  an  officer.  This 
was  done  and  the  jury  not  permitted  to  separate  while  absent  from 
the  court-room.  The  court,  on  this  point,  remarked :  "  In  contem- 
plation of  law  the  place  of  trial  is  not  changed.  The  judge,  the 
clerk,  the  officers,  the  records,  the  parties,  and  all  that  goes  to  make 
up  the  organization  of  the  court,  remain  in  the  court-room.  The 
jury  retire  to  discharge  one  duty  connected  with  the  trial,  and  yet, 
though  absent  while  discharging  that  duty,  inasmuch  as  it  is  done 
under  the  direction  of  the  court  and  while  in  charge  of  an  officer  ap- 
pointed by  the  court,  they  are,  in  legal  contemplation,  in  the  presence 
of  the  court.  Though  the  defendant  may  not  go  with  them  into 
their  place  of  retirement,  he  is,  nevertheless,  personally  present  dur- 
ing that  portion  as  well  as  the  rest  of  the  trial."  But  this  reasoning 
does  not  seem  to  meet  the  question.  The  bill  of  rights  guarantees 
to  every  person  the  privilege  of  meeting  the  witnesses  against  him, 
face  to  face.  The  jury  leave  the  court  and  visit  the  scene  for  the 
purpose  of  acquiring  knowledge  to  aid  them  in  their  determi- 
nation ;  this  they  receive  from  inanimate  witnesses,  and  in  the  ab- 
sence of  the  accused;  and  neither  he,  his  counsel  or  the  court  know 
what  information  they  have  received  or  what  impressions  it  has  made 
upon  their  minds.  Nor  is  this  all.  The  court  has  no  jurisdiction  to 
try  a  criminal  in  his  absence.  If  this  position  be  tenable,  then  it  would 
seem  to  be  conclusive,  because  the  consent  of  parties  confers  no 
jurisdiction  upon  a  court.  But  can  the  accused  waive  this  consti- 
tutional right  ?  Can  lie  consent  for  the  jury,  on  his  trial  for  a  crime, 
to  go  out  in  the  neighborhood,  in  his  absence,  and  collect  informa- 

1  8  Whart.  Cr.  L.  (7th  ed.),  §  8160,  p.     juror  measured  the  tracks,  and  the  case 
151.    And  in  this  connection  see  the  case    was  reversed. 
of  State  v.  Houser,  28  Mo.  233,  where  the 


VIEW  OF  PREMISES  BY  JURY.  395 

tion  from  inanimate  witnesses,  to  convict  him?  The  court  in  the 
above  case  held  that  he  could.  That  the  language  of  the  Bill  of  Rights 
is  permissive,  "  the  accused  shall  be  allowed,"  that  is,  he  may  leave 
if  he  wishes ;  if  he  does  not  wish,  he  may  forego.  "  If  he  does  not 
wish  then  he  cannot  complain  that  they  are  not  forced  upon  him."1 
It  seems  that  the  force  of  this  reasoning  may  well  be  doubted.  It  is 
his  right  to  be  present  at  all  stages  of  the  proceedings.  Suppose 
one  indicted  for  a  crime  prefers  to  remain  in  his  cell  in  jail,  and  let 
his  trial  proceed  in  his  absence,  would  the  trial  be  legal,  and  would 
the  conviction  be  sustained  ? 

Same  —  murder  —  rule  in  Arkansas  and  Georgia. 

§  585.  In  Arkansas,  in  the  progress  of  a  trial,  a  witness  was  sworn 
to  accompany  the  jury,  which  he  did,  to  view  the  premises  and  scene 
of  the  alleged  murder,  and  he  pointed  out  the  place  where  one  John 
Morrow  and  the  defendant  resided  at  the  time  of  the  homicide,  and 
the  house  in  which  the  deceased  resided  at  the  time,  and  the 
place  where  the  dead  body  lay,  and  the  jury  inspected  these  places 
with  him.  The  defendant  did  not  accompany  them,  but  was  left 
with  the  sheriff  in  the  court-room.  He  was  convicted,  but  a  new- 
trial  was  granted  upon  the  facts  above  stated.2  One  Bostock  was 
convicted  of  murder  in  causing  the  deceased  to  fall  or  leap  from  a 
portico.  It  appeared  that  during  the  trial,  the  court  asked  the  coun- 
sel for  the  defendant,  in  the  presence  of  the  jury,  if  he  objected  to 
the  jury  examining  the  premises  by  going  to  the  house,  who  replied 
that  he  did  not,  whereupon  the  court  sent  the  jury  to  the  house 
where  the  defendant  lived  at  the  time  the  alleged  offense  was  com- 
mitted, to  examine  the  same,  in  the  custody  of  two  officers  of  the 
court,  but  neither  the  defendant  nor  the  court  were  present  when 
this  part  of  the  trial  was  had  in  and  about  the  defendant's  house. 
This  extraordinary  proceeding  was  held  to  be  error ;  that  the  court 
had  no  legal  right  to  request  defendant's  counsel  to  say  whether  or 
not  he  objected  to  such  a  proceeding,  and  especially  in  the  presence 
of  the  jury  ;  and  the  fact  that  he  did  not  object,  under  the  circum- 
stances, did  not  legalize  that  extraordinary  proceeding.* 

Same  —  burglary  —  rule  in  Louisiana. 

§  586.  Two  reasons  have  been  urged  against  the  adoption  of  such 
a  proceeding  in  criminal  practice :  1.  That  a.  verdict  upon  facts 
thus  obtained  would  be  a  finding  on  facts  known  only  to  the  jury, 

1  State  v.  Adams,  20  Kans.  311.  3  Bostock  v.  State,  61  Ga.  639. 

8  Benton  v.  State,  30  Ark.  328. 


396  THE  LAW  OF  IDENTIFICATION. 

not  publicly  developed  on  the  trial,  and  concerning  which  the  de- 
fendant had  no  opportunity  to  cross-examine  them  as  witnesses,  and 
upon  which  the  defendant  or  his  counsel  had  not  been  heard,  and  of 
which  the  judge  had  no  information,  and  to  which  he  could  not 
charge  the  jury.  2.  As  held  by  other  courts,  the  prisoner  has  the 
right  to  meet  the  witnesses  face  to  face,  and  that  no  evidence  can  be 
communicated  to  the  jury,  except  in  the  presence  of  the  accused. 
This  latter  view  was  taken  by  the  Supreme  Court  of  Louisiana  in 
1872.  Two  defendants  were  convicted  of  burglary  while  armed  with 
a  dangerous  weapon.  During  the  trial,  on  motion  of  the  State,  the 
court  directed  the  jury  to  retire  from  the  court-room,  and  visit  and 
inspect  the  premises  where  the  burglary  was  alleged  to  have  been  com- 
mitted. The  court  said  :  "  He  directed  a  witness  for  the  State  to 
accompany  them  and  point  out  the  places  marked  out  on  the  diagram 
of  the  premises,  which  the  witnesses  had  testified  to  the  day  before, 
and  which  the  State  had  offered  in  evidence.  The  accused  were  not 
permitted  to  attend  this  inspection  of  the  premises,  and  the  explana- 
tions of  the  State  witness,  his  pointing  out  to  the  jury  the  relations 
between  the  diagram,  already  in  evidence,  and  the  premises  inspected, 
took  place  out  of  the  presence  of  the  accused.  Why  such  proceed- 
ings were  permitted,  we  are  not  informed,  and  cannot  imagine.  The 
judge  a  quo  states  at  the  foot  of  the  bill  of  exceptions,  that  the  jury 
were  especially  instructed  not  to  converse  with  the  witness,  and  the 
witness  was  instructed,  'to  make  no  explanations,  but  to  confine  him- 
self to  pointing  out  appearances  as  described  in  the  said  diagram.' 
Concede  that  in  the  absence  both  of  the  accused  and  the  judge  (for 
the  judge  did  not  accompany  the  expedition)  the  witness  and  the 
jury  obeyed  these  instructions  to  the  letter.  It  would  result  merely 
that  the  witness  gave  testimony  on  the  premises,  out  of  court, 
and  in  the  absence  of  the  accused,  in  the  same  way  that  a  dumb  per- 
son gives  testimony,  namely,  by  signs  (1  Greenleaf,  §  366,  and  cases 
cited).  And  it  needs  no  argument  to  prove  that  the  effect  of  such 
'  pointing  out,'  in  dumb  show,  is  as  potent  with  a  jury  as  if  the  veri- 
fication of  the  diagram  had  been  enforced  with  a  multitude  of  words."1 
Some  of  the  courts  have  taken  still  another  view,  to  the  effect  that 
in  viewing  the  premises,  the  jurors  are  not  to  be  converted  into  wit- 
nesses, acting  on  their  own  inspection,  but  only  to  enable  them  the 
more  clearly  to  understand  and  apply  the  evidence.2  But  this  was 
a  civil  action  involving  lands  in  litigation. 
1  State  v.  Bertin,  24  La.  Ann.  46.  s  Wright  v.  Carpenter,  49  Cal.  607. 


VIEW  OF  PREMISES  BY  JURY.  397 

Jurors  —  knowledge  acquired  by  inspection. 

§  587.  In  a  Texas  case,  decided  in  1875,  John  Smith  was  indicted 
for  stealing  a  sow  and  six  pigs  from  one  Houston.  It  appeared  to 
be  quite  uncertain,  from  the  evidence,  who  was  the  real  owner  of  the 
property,  Smith  or  Houston.  There  was  a  mistrial,  the  jury  failing 
to  agree,  and  by  consent  of  parties,  another  trial  was  had  at  the  same 
term  of  the  court,  and  he  was  convicted  and  his  punishment  assessed 
at  one  year  at  hard  labor  in  the  penitentiary.  During  the  progress 
of  the  trial,  on  the  suggestion  of  the  district  attorney,  the  jury  was 
taken  in  charge  of  an  officer,  to  "  see  and  examine  the  sow  as  part  of 
the  testimony  in  the  cause."  The  case  was  reversed  and  remanded. 
The  court  held  (1)  that  there  was  no  authority  in  that  State  for  such  a 
mode  of  enlightening  the  minds  of  the  jury  as  to  the  material  facts 
of  a  case  which  they  have  to  try ;  (2)  that  a  verdict  upon  facts 
thus  ascertained  would  be  a  finding  of  facts  known  only  to  the  jury 
—  not  publicly  developed  on  the  trial  of  the  issue  joined,  concerning 
which  defendant  had  no  opportunity  to  cross-examine  them  as  wit- 
nesses, upon  which  defendant  or  his  counsel  had  not  been  heard,  and 
of  which  the  judge  had  no  information.1  This  is  certainly  correct 
as  a  legal  proposition,  and  it  is  based  upon  the  same  rule  of  law  that 
if  one  juror  has  knowledge  of  a  material  fact  in  the  case  on  trial,  he 
cannot,  for  the  first  time,  disclose  that  fact  in  the  jury  room,  for  the 
jury  to  act  upon.  If  a  juror  has  in  his  possession  a  knowledge  of 
material  facts,  which  should  be  considered  by  the  jury  upon  their  re- 
tirement, he  should  be  sworn  as  a  witness  in  the  case,  for  the  bene- 
fit of  the  court  and  his  fellow  jurors  (and  there  is  no  objection  to  a 
juror  being  a  witness  in  the  case  he  is  called  upon  to  try),  unless, 
however,  he  has  formed  or  expressed  an  opinion  based  upon  the 
knowledge  he  possesses,  and  which  might  bias  his  mind  as  a  juror, 
and  upon  this  he  is  subject  to  a  rigid  cross-examination,  upon  which 
he  may  disqualify  himself  as  a  juror.  So  it  is  well  enough  to  poll 
the  jury  in  all  important  cases,  so  as  to  have  a  fair  and  impartial  trial 
of  the  issue. 

View  of  highway  —  rule  in  Massachusetts. 

§  588.  A  photographic  view  of  a  defective  highway  may  be  taken 

and  used  in  evidence  in  an  action  against  a  corporation  for  damages 

for  injuries  sustained  while  traveling  thereon,  and  which  defendant 

was  bound  to  keep  in  repair.     Plaintiff  was  traveling  in  the  night- 

J  Smith  v.  State,  42  Tex.  444. 


398  THE  LAW  OF  IDENTIFICATION. 

time  with  a  horse  and  buggy ;  there  was  a  mud-hole  in  the  center 
of  the  road,  which  caused  the  travel  to  take  one  side  or  the  other  of 
this  hole ;  the  road  was  a  raised  causeway,  built  through  a  hollow,  the 
embankment,  which  was  not  protected  by  a  rail,  being  twenty-three 
inches  high ;  the  horse  and  buggy  went  over  the  embankment.  The 
defendant  put  in  evidence  a  photograph  of  the  place  of  the  accident, 
which  was  not  exhibited  to  the  jury,  until  evidence  of  the  photog- 
rapher, who  took  it,  was  put  in.  He  testified  to  the  taking  of  it, 
and  that  he  placed  his  instrument  in  the  middle  of  the  road,  about 
one  rod  from  where  the  face  of  the  picture  begins ;  that  he  made  no 
measurement,  but  made  the  photograph  as  fairly  as  could  be.1* 

Same  —  view  —  railroad  bridge  —  wreck. 

§  589.  In  an  action  for  damages  against  a  railroad  company,  it  ap- 
peared that  the  plaintiffs  husband  was  a  conductor  on  one  of  de- 
fendant's trains,  which  fell  through  a  bridge  on  the  night  of  August 
24,  1875,  whereby  he  was  killed.  It  was  alleged  that  the  deceased 
was  without  fault,  but  that  the  bridge  was  defectively  constructed. 
There  was.  a  photographic  view  of  the  wreck,  bridge,  etc.,  taken. 
SEEVERS,  J.,  said :  "  What  was  claimed  to  be  a  photograph  of 
the  wreck  and  bridge,  taken  after  the  accident,  was  shown  a  wit- 
ness, and  in  reference  thereto  he  testified  :  '  It  is  a  very  correct 
picture  of  wreck  next  morning.  It  is  as  near  correct  as  can  be.' 
Whereupon  the  plaintiff  offered  to  introduce  the  same  in  evidence, 
to  which  the  defendant  objected,  because  '  incompetent,  and  that  it 
does  not  show  any  thing,'  which  was  overruled,  and  the  same  ad- 
mitted as  evidence.  It  is  claimed  in  argument  that  there  was  no 
evidence  showing  that  the  photograph  was  a  copy  from  the  negative 
taken  of  the  wreck,  and  that,  to  be  competent  evidence,  it  must  have 
been  taken  before  there  was  any  change  made  in  the  appearance  of 
the  broken  bridge,  and  that  the  photograph  shows  that  work  had 
1  Blair  v.  Pelham,  118  Mass.  420. 

*  In  Blair  v.  Pelham,  supra,  GRAY,  C.  J . ,  said :  "  A  plan  or  picture,  whether  made  by  the  hand 
of  man  or  by  photography.  Is  admissible  in  evidence,  if  verified  by  proof  that  it  is  a  true  repre- 
sentation of  the  subject,  to  assist  the  jury  in  understanding  the  case.  Marcy  v.  Barnes,  1C  Gray, 
101;  Hollenbeck  v.  Rowley,  8  Allen,  473;  Cozzens  v.  Higgins,  1  Abb.  Ct.  App.  Dec.  451;  Ruloff 
v.  People,  46  N.  Y.  213;  Udderzook  v.  Com.,  76  Pa.  St.  340;  Church  v.  Milwaukee,  31  WIs.  512. 
Whether  it  is  sufficiently  verified  is  a  preliminary  question  of  fact,  to  be  decided  by  the  judge 
presiding  at  the  trial,  and  not  open  to  exception.  Com.  v.  Coe,  115  Mass.  481,  505;  Walker 
v.  Curtis.  116  id.  08.  The  evidence  of  what  happened  at  the  same  place  the  year  before  was 
rightly  rejected,  because  it  tended  to  raise  a  collateral  issue;  and  because,  it  being  admitted 
that  the  highway  had  been  in  the  same  condition  for  twenty-four  hours  before  the  injury  now 
sued  for,  the  previous  length  of  time  for  which  it  had  existed  was  Immaterial.  Aldrich  v.  Pel- 
ham,  1  Gray,  510;  Payne  v.  Lowell,  10  Allen,  147. 


VIEW  OF  PREMISES  BY  JURY.  399 

been  done  about  the  wreck  before  it  was  taken.  In  support  of  such 
claim,  HoU&nheck  v.  Rowley,  8  Allen,  473,  is  cited.  In  that  case, 
however,  there  was  the  further  objection  that  the  photograph  was  a 
view  of  only  a  part  of  the  premises.  Besides  this,  it  was  held  that 
it  was  a  matter  within  the  discretion  of  the  court  to  either  admit  or 
reject  the  photograph.  As  the  photograph  is  not  before  us,  we  can- 
not tell  whether  it  shows  that  work  had  been  done  about  the  wreck 
before  it  was  taken  or  not.  There  is  no  testimony  so  showing.  It 
was  shown  to  be  a  correct  delineation  of  the  bridge.  Now,  it  was 
not  objected  below  that  the  witness  was  not  competent  to  so  testify, 
or  that  no  one  but  the  photographer  was  competent  to  testify  as  to 
its  being  a  correct  copy  of  the  negative,  and,  therefore,  these  questions 
cannot  be  raised  for  the  first  time  in  this  court.  We  are  unable  to 
say  what  was  shown  by  the  picture  introduced  in  evidence,  but  if  it 
was  a  correct  delineation  of  the  wreck,  broken  bridge  and  stream  we 
conceive  it  would  be  competent  testimony,  for  the  same  reason  that 
the  jury,  if  it  was  possible  for  them  so  to  do,  would  have  been  per- 
mitted to  have  viewed  and  inspected  the  same  for  the  purpose  of  more 
readily  understanding  and  properly  applying  the  other  evidence."1 

Photographic  views  —  rule  in  New  York. 

§  590.  Where  a  party  was  indicted  for  vending  obscene  and  inde- 
cent photographs,  the  photograph  itself  was  the  proper  instrument 
of  evidence  to  be  introduced  for  examination  and  inspection  by  the 
jury  on  the  trial  of  the  indictment.  The  New  York  statute  (§  317, 
Penal  Code),  declaring  it  to  be  a  misdemeanor  for  any  person  "  to 
sell,  lend,  give  away,  or  offer  to  give  away,  show,  or  to  have  in  his 
possession  with  intent  to  sell  or  give  away,  or  show,  or  advertise,  or 
otherwise  offer  for  loan,  gift,  sale  or  distribution,  an  obscene  or  in- 
decent book,  writing,  paper,  picture,  drawing  or  photograph,"  was 
held  to  include  all  pictures,  drawings  and  photographs  of  an  inde- 
cent tendency,  embracing  such  as  are  offensive  to  chastity,  and 
demoralizing  and  sensual  in  their  character,  by  exposing  what  purity 
and  decency  forbids  to  be  shown,  and  which  are  productive  of 
libidinous,  lewd  thoughts  or  emotions.  One  Muller  was  indicted  for 
selling  a  certain  indecent  and  obscene  photograph,  representing  a 
nude  female  in  a  lewd,  obscene,  indecent,  scandalous  and  lascivious 
attitude  and  posture,  and  also  with  having  in  his  possession  divers 
lewd,  scandalous,  obscene  and  indecent  photographs  representing 
1  Locke  v.  R.  Co.,  46  Iowa,  109,  112. 


400  THE  LAW  OF  IDENTIFICATION. 

divers  nude  female  figures  in  various  lewd,  indecent,  immoral,  las- 
civious, scandalous  and  obscene  attitudes  and  postures,  etc.  These 
photographs  were  produced  in  evidence  for  the  inspection  and  ob- 
servation of  the  jury,  and  there  was  no  denial  on  the  part  of  the 
defendant  that  such  photographs  were  kept  for  sale  in  the  store  in 
which  he  was  a  clerk,  and  were  there  exhibited  and  sold,  as  that  was 
desired  by  customers  dealing  with  him  at  the  store.  DANIELS,  J., 
said  :  "As  the  statute  has  given  this  general  definition  of  the  char- 
acter of  the  acts  constituting  the  offense,  it  must  necessarily  have 
been  designed  that  the  drawing,  picture,  photograph  or  writing, 
should  be  exhibited  to  and  observed  by  the  jury,  for  them  to  deter- 
mine as  a  matter  of  fact,  in  the  exercise  of  their  good  sense  and 
judgment,  whether  or  not  they  were  obscene  and  indecent.1  This 
rule  of  permitting  the  jury  to  examine  photographs  has  been  adopted 
in  England  and  America  in  all  proper  cases.2 

Inspection  —  ancient  and  modern  rules. 

§  591.  As  a  matter  of  identification  in  former  times,  trial  by  in- 
spection was  recognized  as  the  proper  mode  to  determine  questions 
at  issue  in  the  courts ;  this  was  laid  down  as  the  proper  rule  by  the 
ancient  writers,  when  the  judges  resorted  to  the  mode  without  the 
intervention  of  that  awkward  appendage  then  known  as  a  jury. 
It  was  the  rule  in  many  questions  besides  personal  identity.  Much 
of  the  old  rule  still  prevails,  with  modifications  to  meet  the  exigen- 
cies of  the  present  age,  and  the  march  of  ideas.  Mr.  Thompson, 
in  his  law  of  Trials,  vol.  1,  §  851,  lays  down  cases  to  which  our 
modern  rule  applies,  among  which  are  cases  of  alleged  pregnancy ; 
when  an  examination  becomes  necessary  under  the  issue  presented 
to  the  court.  When  a  jury  of  matrons  was  called,  they  asked 
for  the  assistance  of  a  surgeon,3  who  knew  probably  less  about  the 
matter  than  they  did,  for  want  of  experience.  And  the  statute  of 
New  York  seems  to  have  provided  for  a  jury  of  medical  men,4 
whose  judgment  is,  perhaps,  no  more  reliable  than  other  experts. 
And  in  divorce  cases,  when  it  becomes  necessary  under  these 
state  of  pleadings,  where  im potency  or  sexual  incapacity  is  alleged 
as  the  ground  upon  which  the  divorce  is  claimed.  A  few  lead- 

1  People  v.  Muller,  32  Hun,  209.  Udderzook  v.   Com.,   76    Pa.   St.    340; 

9  Reg.  v.  Hicklin,  L.  R.,  3  Q.  B.  360  Walker  v.  Curtis,  116  Mass.  98. 

(1867).     And   see  Marcy  v.  Barnes,   16  a  Reg.  v.  Wycherley,  8  Carr.  &  P.  262. 

Gray,  161;  Ruloff  v.  People,  45  N.  Y.  42  Rev.  Stat.  (Edm.)  679,  §  20;  Code 

218;  Church  v.  Milwaukee,  81  Wis.  512;  Crim.  Proc.,  §  500. 


VIEW  OF  PREMISES  BY  JURY.  401 

ing  cases  may  be  cited.1  On  this  branch  of  the  subject  in  an  Eng- 
lish case,  Sir  WILLIAM  SCOTT  said  :  "  Courts  of  law  are  not  invested 
with  the  power  of  selection.  They  must  take  the  law  as  it  is  im- 
posed on  them.  Courts  of  the  highest  jurisdiction  must  often  go 
into  cases  of  the  most  odious  nature,  where  the  proceeding  is  only 
for  the  punishment  of  the  offender.  Here  the  claim  is  for  a  remedy 
and  the  court  cannot  refuse  to  entertain  it  on  any  fastidious  notions 
of  its  own."2  And  the  court  will  be  more  reluctant  to  grant  the 
inspection  where  the  person  is  old,  or  where  it  is  the  wife  who  is 
to  be  inspected.3 

View  of  premises  —  civil  action  —  ejectment. 

§  592.  The  rule  is  laid  down  by  Mr.  Wharton,  that  as  to  permit- 
ting the  jury  to  view  premises,  the  same  rule  prevails  in  civil  and 
criminal  practice,  except  that  in  the  latter  the  accused  should  accom- 
pany the  jury  on  the  visit.  In  California,  in  an  action  of  ejectment, 
decided  in  1875,  the  court,  in  relation  to  the  examination  of  the 
land,  and  its  character  as  swamp  or  dry  land,  said :  "  In  authorizing 
the  court  to  send  the  jury  to  view  the  premises  in  litigation,  it  was 
not  the  purpose  of  the  statute  to  convert  the  jurors  into  witnesses, 
acting  on  their  own  inspection  of  the  land,  but  only  to  enable  them 
the  more  clearly  to  understand  and  apply  the  evidence.  If  the  rule 
were  otherwise,  the  jury  might  base  its  verdict  wholly  on  its  own 
inspection  of  the  premises,  regardless  of  the  overwhelming  weight 
of  evidence  to  the  contrary,  and  the  losing  party  would  be  without 
a  remedy  by  motion  for  a  new  trial.  It  would  be  impossible  to  de- 
termine how  much  weight  was  due  to  the  inspection  by  the  jury  as 
contrasted  with  the  opposing  evidence,  or  (treating  the  inspection 
as  in  the  nature  of  evidence)  whether  it  was  sufficient  to  raise  a  sub- 
stantial conflict  in  the  evidence;  the  cause  would  be  determined,  not 
upon  the  evidence  given  in  court  to  be  discussed  by  counsel,  and 
considered  by  the  court  in  deciding  a  motion  for  a  new  trial,  but 
upon  the  opinions  of  the  jurors  founded  on  the  personal  inspection, 
the  value  or  the  accuracy  of  which  there  would  be  no  method  of 
ascertaining.4  If  this  reasoning  of  the  court  of  California  be  sound 
in  a  civil  action,  would  it  not  apply  with  equal  force  in  a  criminal 

1  Devanbagh    v.    Devanbagb,    5  Pai.     v.    Le  Barren,  35  Vt.   365;  Newell  v. 
554;  Briggs  v.  Morgan,  3  Pbillim.  325;     Newell,  9  Pai.  25. 
Norton   v.   Seton,   id.    147;     Shafto    v.         2  Briggs  v.  Morgan,  3  Pbillim.  325. 
Sbafto,  28  N.  J.   Eq.    34;  Harrison   v.         «  Sbafto  v.  Sbafto.  28  N.  J.  Eq.   84; 
Harrison,  4  Moore  P.  C.  96;  Le  Barren    Brown  v.  Brown,  1  Hagg.  Ecc.  523. 
4  Wright  v.  Carpenter,  49  Cal.  607. 

51 


402  THE  LA.W  OF  IDENTIFICATION. 

trial,  where  the  life  or  liberty  of  the  defendant  is  involved  2  The 
jurors  can  visit  the  premises  or  view  the  scene  of  an  alleged  crime 
for  no  other  purpose  than  to  acquire  information,  and  that  only  to 
guide  them  in  the  finding  of  their  verdict.  When  thev  have  re- 
ceived information  from  two  sources,  one  in  court  and  the  other  out 
of  court,  who  can  say  which  influenced  their  action  V  or  if  both, 
which  had  the  greater  weight  ?  if  the  latter,  the  judge  had  no  knowl- 
edge of  it ;  and  how  can  he  give  in  charge  the  law  applicable  to 
facts,  of  which  he  has  no  knowledge  ?  or  how  can  he  decide  a  mo- 
tion for  a  new  trial  2 


CHAPTEK  XV. 

COMPULSORY  PHYSICAL  EXAMINATION. 

SEC.  SEC. 

593.  Examination  of  persons  —  injured    603.  Same  —  rule  in  New  York. 

parts  —  by  jury.  604.  Notice  to  produce  a  dog  in  court. 

594.  Same  —  different  rule  —  examina-    605.  Compulsory  physical  examination. 

tion  —  when  necessary.  606.  Same  —  accused    not    to    convict 

595.  Same  —  railroad  employee — rule  in  himself. 

Iowa.  607.  Murder  —  accused    examined    by 

596.  Same  —  compulsory    examination  coroner. 

by  experts.  608.  Indictment  for  rape  —  identity  of 

597.  Same  —  compulsory  —  right  —  dis-  accused. 

cretionary  power.  609.  Tracks     in    corn    field  —  rule    in 

598.  Same  —  action  against  street  rail-  North  Carolina. 

road  company.  610.  Free  negro  carrying  arms — rule  in 

599.  Same  —  turnpike    company  —  rule  North  Carolina. 

in  Ohio.  611.  Tracks  —  accused     compelled     to 

600.  Same  —  conflict — rule  in    Arkan-  make. 

sas.  612.  Prisoner's  testimony  used  against 

601.  Same  —  rule  in  Pennsylvania.  him. 

602.  Same  —  rule  in  Minnesota. 

Examination  of  persons  —  injured  parts  —  by  jury. 

§  593.  In  questions  of  personal  identity  it  is  generally  admissible 
for  the  jury  to  examine  the  person  whose  identity  is  in  dispute,  as  well 
as  the  testimony  of  witnesses  as  to  the  identification.  In  England 
a  party  against  whom  an  information  was  filed  for  importing 
goods  prohibited  by  law,  had  himself  brought  into  court  on  a 
habeas  corpus  ad  testificandum,  that  he  might  show  that  the  guilty 
party  had  personated  him.1  It  is  now  the  usual  practice  in  criminal 
proceedings  as  well  as  in  civil  actions  for  damages,  for  the  injured  per- 
son to  exhibit  to  the  jury  for  examination,  verification  and  identifica- 
tion, the  injured  part  or  parts  of  the  body,  whereever  there  is  any 
question  as  to  the  extent,  nature  or  character  of  the  injury.  This  may 
be  done  voluntarily.2  But  it  was  held  in  Illinois  that  it  would  not 
be  enforced.  And  where  an  action  was  brought  to  recover  damages 
to  plaintiff's  eyes,  caused  by  the  use  of  smoking  tobacco  with  gun- 
powder in  it,  it  was  held  that  there  was  no  error  in  the  court  below 
refusing  to  compel  the  plaintiff  to  submit  his  eyes  to  the  examina- 
tion of  a  physician  in  the  presence  of  the  jury  —  that  the  court  had 
no  power  to  make  or  enforce  such  an  order.8 

1  Attorney-General      v.     Fadden,     1        9  Parker  v.    Enslow,    102    111.    272; 
Price,  403.  Loyd  v.  R.  Co  .  53  Mo.  515. 

3  Parker  v.  Enslow,  102  111.  279. 


404:  THE  LAW  OF  IDENTIFICATION. 

The  same  rule  was  held  in  Missouri.  One  Mrs.  Loyd  brought  an 
action  against  the  railroad  company  for  injuries  sustained  by  her  in 
alighting  from  the  car  at  Monroe  City,  where  it  was  alleged  that  the 
train  did  not  stop  a  sufficient  length  of  time  for  her  to  alight  with 
safety.  The  court  said  :  "  The  proposal  to  the  court  to  call  in  two 
surgeons,  and  have  the  plaintiff  examined  during  the  progress  of 
the  trial  as  to  the  extent  of  her  injuries,  is  unknown  to  our  practice 
and  to  the  law.1  She  recovered  a  judgment  for  $4,000,  and  it  was 
affirmed.  But  upon  this  the  courts  are  not  agreed,  many  of  them 
holding  that  a  compulsory  examination  is  proper  and  right  in  the 
exercise  of  a  proper  discretion.  And  where  it  is  a  proper  case,  and 
the  application  is  made  at  the  proper  time,  the  inspection  may  be 
made. 

Same  —  different  rule  —  examination  —  when  necessary. 

§  594.  In  Texas,  in  1885,  in  an  action  by  Underwood  against  the 
International  Railroad  Company,  for  damages  alleged  to  have  been 
sustained  while  a  passenger  on  defendant's  railroad,  in  consequence 
of  defendant's  negligence,  plaintiff  claimed  $28,000  and  $5,000 
as  exemplary  damages.  He  had  verdict  and  judgment  for  $15,000. 
This  was  reversed,  as  being  excessive.  It  was  held  by  the  Supreme 
Court,  that  though  the  right  to  have  an  examination  made  of  one 
who  sues  to  recover  damages  for  permanent  injuries  to  his  person, 
in  order  that  their  extent  may  be  known,  and  to  have  it  done  by 
skilled  persons  under  the  order  of  the  court,  has  been  maintained, 
when  shown  to  be  necessary  to  further  the  ends  of  justice ;  yet,  a 
case  will  not  be  reversed  for  a  refusal  to  order  the  making  of  such  an 
examination,  where  it  was  not  shown  to  be  necessary  to  a  full  presen- 
tation of  the  facts  of  the  case,  and  where  it  was  not  shown  that  the 
plaintiff  was  unwilling  that  such  examination  should  be  made  by 
competent  persons.2 

Same  —  railroad  employee  —  rule  in  Iowa. 

§  595.  In  an  action  in  Iowa,  in  1877,  by  an  employee  of  a  railroad 
company,  to  recover  damages  for  personal  injuries  sustained  by  rea- 
son of  the  negligence  of  defendant's  employees,  there  was  a  judgment 
for  plaintiff,  and  defendant  appealed.  On  the  question  of  the  ex- 
amination of  the  plaintiff  as  to  the  extent  of  his  injuries,  and  their 
effect  upon  his  health  and  strength,  he  had  testified  on  a  former 

1  Loyd  v.  R.  Co.,  53  Mo.  515.  And  » Int.  R.  Co.  v.  Underwood,  64  Tex. 
see  Stuart  v.  Havens,  17  Neb.  211.  463. 


COMPULSORY  PHYSICAL  EXAMINATION.  405 

trial  that  he  was  so  far  disabled  that  he  could  not  engage  in  labor  re- 
quiring the  exercise  of  common  strength  and  activity;  that  he  had  great 
pain  in  his  hips  and  back,  impairing  his  nervous  system,  paralyzing 
his  limbs  and  some  of  his  internal  organs.  Defendant,  after  the  im- 
paneling of  the  jury,  and  before  any  testimony  was  introduced,  filed 
an  application  for  an  order  requiring  plaintiff  to  submit  to  an  exami- 
nation by  physicians  and  surgeons  as  to  the  injuries  complained  of, 
their  nature,  character  and  extent.  The  court  said  :  "  If,  for  this 
purpose,  the  plaintiff  may  exhibit  his  injuries,  we  see  no  reason  why 
he  may  not,  in  a  proper  case  and  under  proper  circumstances,  be  re- 
quired to  do  the  same  thing  for  a  like  purpose,  upon  the  request  of 
the  other  party.  If  he  may  be  required  to  exhibit  his  body  to  the 
jury,  he  ought  to  be  required  to  submit  it  to  examination  of  com- 
petent professional  men.1 

Same  —  compulsory  examination  by  experts. 

§  596.  In  Kansas,  in  1883,  a  case  was  decided  in  which  one  Thul 
sued  the  railroad  company  to  recover  damages  for  injuries  to  him 
while  in  the  employ  of  the  company  as  a  section  hand.  Going  to 
his  work,  with  others,  on  a  hand-car,  they  met  an  approaching  train, 
when,  needlessly  and  carelessly,  hot  steam  and  hot  water  was  thrown 
upon  him,  and  into  his  face  and  eyes,  so  that  his  sight  was  impaired, 
injured  and  destroyed.  He  had  judgment  for  $400,  and  this  was  re- 
versed, the  court  holding,  substantially,  that  in  actions  for  personal 
injuries  of  a  permanent  or  temporary  character  to  plaintiff's  eyes, 
where  he  himself  testifies  as  to  the  injuries,  and  where  there  was  no 
physician  or  surgeon  or  medical  expert  examined  in  the  case,  the 
plaintiff  may  be  required  by  the  court,  when  the  application  is  prop- 
erly made,  to  submit  his  eyes  to  examination  by  some  competent  ex- 
pert, for  the  purpose  of  ascertaining  the  nature,  character  and  extent 
of  the  injuries  received ;  the  court  exercising  in  all  such  cases  a 
sound  discretion.2 

Same  —  compulsory  —  right  —  discretionary  power. 

§  597.  The  Supreme  Court  of  Missouri,  in  1885,  on  this  subject, 
held  that  the  power  in  the  trial  court  to  compel  an  examination  of 
the  plaintiff's  injuries  was  a  discretionary  power,  and  when  exercised, 
would  not  be  interfered  with,  unless  there  appeared  to  be  a  manifest 
abuse  of  such  power.  Shepard,  the  plaintiff,  sued  the  railroad  for 

1  Schroeder  v.  R.  Co.,  47  Iowa,  375,  2  Atchison,  etc.,  R.  Co.  v.  Thul,  29 
383.  Kans.  466. 


406  THE  LAW  OF  IDENTIFICATION. 

personal  injuries,  but  it  was  held  in  his  case  that  the  right  is  not  ab- 
solute.1 This  seems  to  have  overruled  a  former  case  decided  by  the 
same  court  in  1873, in  which  it  was  said:  "The  proposal  to  the 
court  to  call  in  two  surgeons,  and  have  the  plaintiff  examined  during 
the  progress  of  the  trial  as  to  the  extent  of  her  injuries,  is  unknown 
to  our  practice  and  to  the  law."2 

Same  —  action  against  street  railroad  company. 

§  598.  In  Wisconsin,  in  1884,  an  action  was  brought  for  personal 
injuries  against  a  street  railroad  company,  alleged  to  have  been  re- 
ceived by  plaintiff  through  the  negligence  of  the  defendant,  its  agents 
or  servants,  while  a  passenger  on  the  street  cars.  A  separate  track 
was  used  for  the  cars  going  in  each  direction,  and  frogs  were  so 
placed  as  to  prevent  cars  going  in  the  proper  direction  from  being 
thrown  from  the  track  while  going  from  or  to  a  swing-bridge.  A 
loaded  wagon  having  been  broken  down  on  the  bridge  on  one  of  the 
tracks,  a  car  approaching  thereon  was  necessarily  lifted  to  the  other 
track  and,  being  then  driven  rapidly  upon  the  bridge,  was  thrown 
from  the  track,  injuring  a  passenger.  It  was  held  that,  in  an  action 
for  the  personal  injuries,  the  court  might,  in  a  proper  case,  at  the 
trial,  direct  the  plaintiff  to  submit  to  a  personal  examination  by 
physicians,  on  application  of  the  defendant.8 

Same  —  turnpike  company  —  rule  in  Ohio. 

§  599.  In  an  action  in  Ohio,  in  1881,  against  a  turnpike  company 
for  damage,  for  injuries  to  plaintiff's  back,  hips,  etc.,  alleged  to  have 
resulted  from  the  negligence  of  defendant  in  unlawfully  permitting  a 
certain  bridge  on  its  road  to  be  and  to  remain  out  of  repair  and  un- 
safe, by  reason  whereof,  he,  his  daughter,  wagon  and  team  were 
precipitated  from  the  bridge,  etc.,  the  court  held  that  the  trial 
court  had  the  power  to  require  the  plaintiff  to  submit  his  person  to 
an  examination  by  physicians  and  surgeons  when  necessary  to  ascer- 
tain the  nature  and  extent  of  the  injury.  And,  upon  refusal  to  com- 
ply with  the  order  when  made  on  proper  application,  the  court  may 
dismiss  the  action,  or  refuse  to  allow  the  plaintiff  to  give  evidence  to 
establish  the  injury  ;  that  the  matter  was  in  the  discretion  of  the 
court ;  that  where  the  application  is  not  made  until  after  the  close 
of  plaintiff's  evidence  in  chief,  and  the  commencement  of  defendant's 

1  Sbepard  v.  R.  Co.,  85  Mo.  629.  *  White  v.  R.  Co.,  61  Wia.  586. 

•  Loyd  v.  R.  Co.,  53  Mo.  515. 


COMPULSORY  PHYSICAL  EXAMINATION.  407 

evidence,  and  no  reasonable  showing  is  made  for  the  delay,  it  may 
be  properly  refused  on  that  ground.1 

Same  —  conflict  —  rule  in  Arkansas. 

§  600.  We  have  seen  that  the  courts  are  not  agreed  on  this  sub- 
ject or  rule  of  practice.  While  some  of  the  courts  hold  that  it  is 
unknown  to  the  practice  and  the  law,  others  hold  it  to  be  a  matter 
of  discretion.  There  is  a  third  view  held,  to  the  effect  that  it  is  a 
matter  of  right.  In  an  action  in  Arkansas,  decided  by  the  Supreme 
Court  in  1885,  Smith  sued  Sibley,  as  receiver  of  a  railroad  corpora- 
tion, for  damages  for  being  forcibly  ejected  from  a  moving  train, 
whereby  he  alleged  that  he  received  internal  injuries,  for  which  he 
recovered  a  judgment  for  $2,000,  which  was  reversed.  The  court, 
after  citing  and  commenting  on  several  cases,  said  :  "  The  rule  to  be 
deduced  from  these  cases  is,  that  where  the  plaintiff  in  an  action  for 
personal  injuries  alleges  that  they  are  of  a  permanent  nature,  the  de- 
fendant is  entitled,  as  a  matter  of  right,  to  have  the  opinion  of  a 
surgeon  upon  his  condition  —  an  opinion  based  upon  personal  exami- 
nation."2 

Same  —  rule  in  Pennsylvania. 

§  601.  An  action  was  brought  in  Pennsylvania  on  a  written  agree- 
ment for  the  building  of  a  house  agreeably  to  specifications,  and  a 
working  plan  or  draft,  referred  to  as  a  part  of  the  contract.  The 
defense  was  that  the  house  was  not  properly  constructed.  The 
plaintiff,  before  trial,  sent  persons  to  examine  the  house,  so  that  they 
would  be  able  at  the  trial  to  testify  how  the  work  had  been  done. 
The  defendant  refused  to  permit  them  to  go  through  the  house  for 
such  purpose.  On  this  point  BLACK,  J.,  delivering  the  opinion,  said : 
"  To  smother  evidence  is  not  much  better  than  to  fabricate  it.  A 
party  who  shuts  the  door  upon  a  fair  examination,  and  thus  prevents 
the  jury  from  learning  a  material  fact,  must  take  the  consequence  of 
any  honest  indignation  which  his  conduct  may  excite.  *  *  *  It 
ought  to  be  understood  that  where  one  party  has  the  subject-matter  of 
the  controversy  under  his  exclusive  control,  it  is  never  safe  to  refuse  the 
witnesses  on  the  other  side  an  opportunity  to  examine  it,  unless  he 
is  able  to  give  a  very  satisfactory  reason.  Here  there  was  no  ground 
to  believe  that  the  witness  would  misrepresent  what  he  might  see. 
If  the  defendant  had  felt  such  a  suspicion,  he  could  have  shown  the 

1  Turnpike  Co.  v.  Baily,  37  Ohio  St.        »  Sibley  v.  Smith,  46  Ark.  275. 
104. 


408  THE  LAW  OF  IDENTIFICATION. 

house  to  as  many  others  as  he  chose,  and  overwhelm  the  one  per- 
jured man  by  a  host  of  honest  ones."1  The  same  reasoning  will  ap- 
ply with  equal  force  to  the  examination  of  personal  injuries,  in  a 
proper  case,  and  where  it  becomes  necessary  to  elucidate  the  question. 
But  the  weight  of  authority  seems  to  be  that  it  is  not  a  matter  of 
right,  but  one  of  discretion,  and  that  such  discretion  will  be  exercised 
only  when  it  becomes  necessary,  in  the  opinion  of  the  court,  to-  pro- 
mote the  ends  of  justice. 

Same  —  rule  in  Minnesota. 

§  602.  In  Minnesota  an  action  was  brought  by  Mrs.  Hatfield 
against  the  railroad  company  to  recover  damages  for  personal  injuries 
received  while  leaving  defendant's  car,  she  having  fallen,  or  been 
thrown,  from  the  platform  or  steps  of  the  car  upon  the  ground,  in- 
juring the  sciatic  or  great  nerve  of  the  thigh,  giving  great  pain  and 
causing  the  thigh  to  shrink,  rendering  her  lame  and  causing  her  to 
"  limp  "  in  walking.  The  counsel  for  the  defendant  requested  the 
court  to  direct  her  to  walk  across  the  court-room  in  presence  of  the 
jury,  which  the  court  declined  to  do,  to  which  refusal  defendant  ex- 
cepted.  The  refusal  by  the  court  was  sustained,  the  court  saying  : 
"  In  the  present  case,  we  think  the  court  very  properly  refused  to 
direct  the  plaintiff  to  exhibit  herself  to  the  jury  and  bystanders  by 
walking  across  the  room.  Such  an  act  would  have  furnished  the 
jury  little  or  no  aid  in  determining  the  extent  or  character  of  her 
injuries.2 

Same  —  rule  in  New  York. 

§  603.  Where  the  plaintiff  was  injured  in  alighting  from  a  street 
car,  and  sued  for  damages,  it  was  held  proper  for  him  to  exhibit  the 
wounded  limb  to  a  surgeon  in  the  presence  of  the  jury,  but  this  was 
a  voluntary  act  on  the  part  of  the  plaintiff.3  In  Nebraska,  in  1884, 
an  action  was  brought  against  a  railroad  company  for  injuries  to  an 
employee  by  the  explosion  of  an  engine.  It  was  held  not  to  be 
error  for  the  court,  during  the  progress  of  the  trial,  to  refuse  to  order 
the  plaintiff  to  submit  to  an  examination  of  his  person  by  physicians 
Who  were  witnesses  for  the  defendant,  in  the  absence  of  any  show- 
ing that  justice  would  be  promoted  thereby,  and  especially  so  where 
the  plaintiff  submits  to  an  examination  by  such  witnesses  in  the 

1  Bryant  v.  Stilwell,  24  Pa.  St.  814.  8  Mulhado  v.  City  R.  Co.,  80  N.  Y. 

8  Hatfield  v.  R.  Co. ,  18  Am.  &  Eng.  Ry.     870. 
Cas.  292. 


COMPULSORY  PHYSICAL  EXAMINATION.  409 

presence  of  the  jury.  A  judgment  for  $6,250  was  affirmed.1  In 
an  action  for  damages  for  malpractice  by  a  surgeon  upon  a  child, 
the  defendant  asked  for  an  examination  of  the  patient  by  competent 
surgeons.  This  was  held  to  be  a  proper  case,  to  promote  the  ends 
of  justice,  and  the  court  ordered  the  examination.2 

Notice  to  produce  a  dog  in  court. 

§  604.  In  an  action  brought  in  England  in  trespass  for  seizing 
and  detaining  a  dog,  the  defendant  refused  to  produce  the  dog  (un- 
der notice)  during  the  examination  of  plaintiffs  witnesses.  It  was 
held  that  he  would  not  be  permitted  to  produce  it  afterward  for  the 
purpose  of  invalidating  the  testimony  of  the  witnesses.3  This  is 
upon  an  old  rule  of  evidence  announced  in  Massachusetts  in  1827. 
In  an  attempt  to  charge  one  as  a  dormant  partner,  notice  was  given 
to  him  to  produce  at  the  trial  the  original  contract  of  partnership,  a 
copy  of  which  was  annexed  to  the  notice.  It  was  held  that  notwith- 
standing the  supposed  copy  differed  materially,  in  one  particular, 
from  the  original  contract,  the  notice  was  sufficient  to  let  the  plain- 
tiff into  parol  evidence  of  such  contract ;  but  that  the  defendant 
might  introduce  parol  evidence  to  show  that  he  had  not  entered  into 
any  written  agreement  of  copartnership,  though  he  could  not  then 
show  by  parol  that  the  written  agreement  was  different  from  that 
proved  by  the  plaintiff.4 

Compulsory  physical  examination. 

§  605.  In  criminal  trials,  whether  the  defendant  can  be  compelled 
by  order  of  the  court,  against  his  consent,  to  submit  to  a  physical 
examination,  there  is  a  difference  of  opinion.  It  has  been  supposed 
that  it  could  not  be  done,  because  this  compels  the  accused  to  pro- 
duce evidence  against  himself,  and  violate  a  fundamental  principle; 
as  was  held  in  an  English  custom-house  case,  where  a  motion  to 
compel  the  production  of  books  was  denied.5  A  forcible  examina- 
tion of  a  female  prisoner,  under  an  order  of  a  coroner,  by  physi- 
cians, to  ascertain  if  she  had  been  pregnant  and  recently  delivered 
of  a  child,  was  a  violation  of  the  Constitution.6  But  we  find  on 
this  subject  that  the  authorities  are  in  great  conflict,  especially  upon 
questions  of  identity  of  the  prisoner,  when  that  is  the  issue,  and  it 

1  Sioux  City  R.  Co.  v.  Finlayson,   18        4  Bogart  v.  Brown,  5  Pick.  18. 

Am.  &  Eng.  Ry.  Gas.  68.  5  Rex  v.  Worsenkain.  1   Ld.  Raym. 

2  Walsh  v.  Sayre,  52  How.  Pr.  334.         705.     And  see  Reg.  v.  Mead,  2  id.  927. 
8  Lewis  v.  Hartley,  7  Carr.  &  P.  405.        6  Roe  v.  Harvey,  4  Burr.  2489. 

52 


410  THE  LAW  OF  IDENTIFICATION. 

becomes  necessary  to  identify  him  by  marks  or  scars  on  his  person.1 
"We  find  a  ease  decided  in  Nevada  in  1879,  in  which  the  defendant 
was  indicted  for  murder,  and  the  question  of  his  identity  became 
important.  A  witness  stated  that  he  knew  the  defendant,  and  that 
he  had  tattoo  marks  (a  female  head  and  bust)  on  his  right  fore-arm. 
Defendant  was  compelled  by  the  court,  against  his  protest,  to  exhibit 
his  arm  to  the  jury  and  show  the  marks  to  them.  This  was  held  to 
be  proper,  and  that  it  did  not  violate  any  constitutional  provision,  as 
meaning  that  no  person  shall  be  compelled  to  testify  as  a  witness 
against  himself ;  that  it  was  not  prejudicial  to  defendant  and  was 
not  erroneous.  HAWLEY,  J.,  among  many  other  things,  said :  "  The 
Constitution  means  just  what  a  fair  and  reasonable  interpretation  of 
its  language  imports.  No  person  shall  be  compelled  to  be  a  witness, 
that  is,  to  testify  against  himself.  To  use  the  common  phrase,  it 
1  closes  the  mouth '  of  the  prisoner.  A  defendant  in  a  criminal 
case  cannot  be  compelled  to  give  evidence  under  oath  or  affirmation, 
or  make  any  statement  for  the  purpose  of  proving  or  disproving  any 
question  at  issue  before  any  tribunal,  court,  judge  or  magistrate. 
This  is  the  shield  under  which  he  is  protected  by  the  strong  arm  of 
the  law,  and  this  protection  was  given,  not  for  the  purpose  of  evading 
the  truth,  but  as  before  stated,  for  the  reason  that  in  the  sound  judg- 
ment of  the  men  who  framed  the  Constitution,  it  was  thought  that, 
owing  to  the  weakness  of  human  nature,  and  the  various  motivea 
that  actuate  mankind,  a  defendant  accused  of  crime  might  be 
tempted  to  give  evidence  against  himself  that  was  not  true.''  In 
fairness,  an  extract  from  the  dissenting  opinion  of  LEONARD,  J., 
should  be  noticed.  After  quoting  from  the  above  opinion,  he  says : 
"  In  my  opinion,  the  court  has  not  stated  the  only  reason  why  the 
provision  in  question  was  placed  in  the  Constitution.  Had  that 
been  the  only  one,  there  would  have  been  a  prohibition  against  al- 
lowing a  defendant  to  testify  for  himself ;  because  in  the  latter  case 
there  was  and  is  a  hundred-fold  more  danger  of  falsehood  than  in 
the  former.  Is  there  not  an  additional  reason  why  this  provision  was 
adopted  ?  Was  it  not,  in  part,  at  least,  because  of  the  enlightened 
spirit  of  the  age,  that  a  man  accused  of  a  crime  should  not  be  com- 
pelled to  furnish  evidence  of  any  kind  which  might  tend  to  his 
conviction  ?  Did  it  not  come,  to  some  extent,  from  the  spirit  of 
justice  and  humanity  which  established  the  first  of  all  legal  presump- 
1  People  v.  McCoy,  4~>  How.  Pr.  216. 


COMPULSOBY  PHYSICAL  EXAMINATION.  411 

tions  —  that  every  person  shall  be  considered  innocent  until  proven 

guilty?1 

Same  —  accused  not  to  convict  himself. 

§  606.  Can  the  person  of  a  criminal  be  examined  against  his  ob- 
jection, to  furnish  evidence  of  his  identity,  and  tending  to  his  con- 
viction ?  Starkie  on  Ev.  40,  says :  "  Upon  a  principle  of  humanity, 
as  well  as  of  policy,  every  witness  is  protected  from  answering  ques- 
tions, by  doing  which,  he  would  criminate  himself ;  of  policy,  because 
it  would  place  the  witness  under  the  strongest  temptation  to  commit 
the  crime  of  perjury ;  and  of  humanity,  because  it  would  be  to  extort 
a  confession  01  the  truth  by  a  kind  of  duress,  every  species  and  degree 
of  which  the  law  abhors."  It  is  an  invariable  rule  that  no  witness  or 
party  shall  be  compelled  to  furnish  evidence  which  has  a  tendency 
to,  or  may  expose  him  to  a  criminal  charge,  and  the  courts  cannot 
legally  compel  a  person  to  submit  to  inspection,  private  or  public 
documents  in  his  possession  or  custody,  if  such  inspection  is  sought 
for  the  purpose  of  establishing  or  supporting  a  prosecution  against 
him.  In  an  English  case,  the  defendant  and  eight  others  were 
incorporated  as  trustees  of  the  charity  known  as  Bedford's  gifts. 
The  defendant  was  prosecuted  for  failing  to  take  the  oath  of 
office.  Mr.  Raymond  moved  for  a  rule  that  the  prosecutor  might 
have  two  books  produced,  which  these  persons  kept,  in  which 
they  entered  their  elections,  and  also  their  receipts  and  disburse- 
ments ;  and  that  he  might  take  copies  of  what  he  thought  nec- 
essary, and  that  the  books  might  be  produced  at  the  next  Assizes  at 
the  trial.  This  was  denied,  because  they  were  perfectly  of  a  private 
nature,  and  it  would  be  to  make  a  man  produce  evidence  against 
himself  in  a  criminal  prosecution.2  In  this  respect,  our  courts  have 
followed  the  English  precedents,  and  though  it  has  been  said  that 
our  Constitution  did  not  go  as  far  as  the  common  law,  yet  it  was 
intended,  and  has  been  so  construed  as  to  cover  the  whole  scope  of 
the  subject.  This  is  altogether  a  different  question  from  voluntary 
confessions,  which  are  said  to  deserve  the  highest  credit,  though 
involuntary  confessions  will  not  be  received  in  evidence  because  they 
cannot  be  depended  upon  as  the  truth  ;  at  least  those  that  have  been 
induced  by  fear  of  injury  or  hope  of  benefit.  On  this  view  in  crim- 

1  State  v.  Ah  Chuey,  14  Nev.  79,  98.        *  Reg.    v.  Mead,   2  Ld.   Raym,   927. 
As  to  examination  of  party  before  trial,     And  see  Rex  v.  Cornelius,  2  Strange, 
see  R.  Co.  v.  Bottsford,  141  U.  S.  250;    1210. 
McQuigan  v.  R.  Co.,  45  Alb.  L.  J.  66; 
Schroeder  v.  R.  Co.,  47  Iowa.  375. 


412  THE  LAW  OF  IDENTIFICATION. 

inal  prosecutions  some  of  our  courts  have  held  that  the  accused  shall 
not  be  compelled  to  disclose  any  material  fact  which  tends  to  estab- 
lish his  guilt.1 

Murder  —  accused  examined  by  coroner. 

§  607.  A  peculiar  case  was  decided  in  North  Carolina,  in  1874. 
Anica  Garrett  and  Lucy  Stanley  were  indicted  for  the  murder  of 
Alvina  Garrett,  a  girl  fourteen  years  of  age ;  Lucy  Stanley  was  ac- 
quitted. It  appeared  that  the  prisoner  Garrett  made  an  outcry  that 
the  deceased  came  to  her  death  by  her  clothes  accidentally  catching 
fire  while  she  was  asleep ;  and  when  the  witness  reached  the  house 
where  the  body  of  the  girl,  and  where  the  prisoner  were,  Anica  Gar- 
rett told  the  witness  that  she,  Anica,  was  asleep  when  she  was  awak- 
ened by  deceased  screaming ;  that  she  went  to  her,  her  clothes  were 
still  burning,  and  in  attempting  to  put  out  the  flames,  she,  Anica, 
burnt  one  of  her  hands."  It  was  shown  by  Dr.  Walker,  the  exam- 
ining physician  on  the  coroner's  inquest,  that  the  body  of  the  de- 
ceased girl  was  not  burnt  before,  but  after  death,  there  being  no  se- 
rum in  the  blisters,  etc.  The  prisoner,  at  the  inquest,  under  arrest 
and  after  the  jury  had  decided  against  her,  was  ordered  by  the  coro- 
ner to  unwrap  the  hand  she  alleged  had  been  burnt ;  she  did  so,  and 
there  was  no  indication  whatever  of  any  burn  upon  it.  This  was 
proved  on  the  trial  of  the  indictment  against  her,  to  which  her  coun- 
sel objected.  She  was  convicted,  and  it  was  affirmed.  The  court 
said :  "  The  later  cases  are  uniform  to  the  point  that  a  circumstance 
tending  to  show  guilt  may  be  proved,  although  it  was  brought  to 
light  by  declarations,  inadmissible,  per  se,  as  having  been  obtained  by 
improper  influence."2 

Indictment  for  rape  —  identity  of  accused. 

§  608.  In  another  case,  decided  in  the  same  State,  the  accused  was 
indicted  for  rape,  charged  to  have  been  committed  on  one  Susan, 
while  her  real  name  was  Susannah,  though  she  was  generally  called 
Susan.  Held  to  be  sufficient.  Evidence  of  the  name  of  a  prisoner, 
as  given  by  him  when  brought  before  the  examining  magistrate,  is 
admissible,  whether  the  examination  was  reduced  to  writing  or  not. 
On  the  trial,  the  prosecutrix  was  asked  by  the  solicitor  to  look 
around  the  court-room,  and  see  if  she  could  see  the  man  who  com- 

1  State  v.  Garrott,  71  N.  C.  87,  95;     v.  Quarles,  13  Ark.  311;  Wilkins  v.  Ma- 
Latimer  v.  Alexander,  14  Ga.  259;  State     lone,  14  Ind.  156. 
»  State  v.  Garrett,  71  X.  C.  85,  87. 


COMPULSORY  PHYSICAL  EXAMINATION.  413 

mitted  the  rape  on  her,  and  having  done  so,  she  pointed  to  the  prisoner 
and  said :  "  That  is  the  black  rascal."  It  was  insisted  that  this  was  to 
make  the  prisoner  furnish  evidence  against  himself.  But  it  was  held 
by  the  court  that  he  was  sufficiently  identified,  and  this  was  not  error.1 

Tracks  in  cornfield  —  rule  in  North  Carolina. 

§  609.  On  the  trial  of  an  indictment  for  stealing  growing  corn 
from  one  Ricketts,  the  defendant  was  in  the  employment  of  the  pros- 
ecutor. Fresh  tracks,  apparently  of  a  single  person,  were  discovered 
in  the  field,  leading  from  stalk  to  stalk,  where  the  corn  was  missing. 
There  was  a  fence  between  that  portion  of  the  prosecutor' s  premises 
where  the  defendant  lived,  and  the  place  where  the  corn  was  missing. 
The  tracks,  both  going  and  coming,  led  to  this  fence.  He  was  ar- 
rested, and  the  officer  found  under  his  bed  about  one  and  a  half 
bushels  of  corn,  apparently  new  corn.  The  officer  carried  him  to 
the  field  where  the  tracks  were  discovered.  The  State  was  permitted 
to  prove  by  the  officer  that  he  compelled  the  defendant  to  put  his  foot 
in  the  tracks  and  that  it  corresponded  therewith.  This  ruling  was 
sustained  by  the  Supreme  Court.3 

Free  negro — carrying  arms  —  rule  in  North  Carolina. 

§  610.  But  in  the  same  State,  in  1858,  one  Jacobs  was  indicted  as 
a  free  negro,  for  carrying  arms.  The  State  offered  the  defendant  to 
the  inspection  of  the  jury,  that  they  might  see  that  he  was  within 
the  prohibited  degree.  Defendant  objected  to  this  measure,  but  the 
evidence  was  admitted.  He  was  convicted,  and  appealed  This  was 
reversed,  because  the  court  had  no  such  power.3  The  court  refers 
to  a  case  in  which  the  same  thing  was  done,  but  in  that  case  it  was 
done  at  the  request  of  defendant's  counsel.  In  the  above  case  cited, 
the  court  said :  "  It  has  been  often  held,  that  if  a  person  under  du- 
ress confesses  to  having  stolen  goods  and  deposited  them  in  a  certain 
place,  although  his  confession  of  the  theft  will  be  rejected,  yet  evi- 
dence that  he  stated  where  the  goods  were,  will  be  received,  provided 
the  goods  were  found  at  the  place  described.  This  seems  to  be  sus- 
tained by  the  cases  cited  by  the  court.4 

Tracks  —  accused  compelled  to  make. 

§  611.  On  a  trial  for  murder  in  Texas,  in  1879,  the  prosecution 

1  State  v.  Johnson,  67  N.  C.  55.  v.  People,  26  N.  Y.  588;  White  v.  State, 

*  State  v.  Graham,  74  N.  C.  646  (1876).  3  Heisk.  338;  Selvidge  v.  State,  30  Tex. 

3  State  v.  Jacobs,  5  Jones  (N.  C.),  259.  60. 

4  Reg.  v.  Gould,  9  C.  &  P.  364;  Duffy 


414  THE  LAW  OF  IDENTIFICATION. 

proved  that  footprints  were  found  on  the  premises  where  the  homi- 
cide was  committed,  and  was  further  allowed,  over  objection  by  the 
defense,  to  prove  that  the  examining  magistrate  compelled  the  ac- 
cused to  make  his  footprints  in  an  ash-heap,  and  that  the  footprints 
so  made  corresponded  with  those  found  on  the  premises  where  the 
homicide  occurred.  It  was  objected  that  the  evidence  was  incom- 
petent, because  it  violated  the  guaranty  in  the  Bill  of  Rights  that 
"  one  accused  of  crime  shall  not  be  compelled  to  give  evidence  against 
himself."  The  case  seems  to  have  gone  to  the  appellate  court  a 
second  time.  It  was  first  reversed  and  remanded.  The  second  time 
it  came  up,  the  court,  upon  a  review  of  the  authorities,  held  that  the 
objection  was  not  well  taken,  that  the  evidence  was  not  within  the 
inhibition  of  the  Bill  of  flights,  and  the  court  drew  a  distinction  be- 
tween this  case  and  the  case  of  Stokes  v.  State,  a  late  Tennessee  case. 
In  the  latter  case  a  pan  of  mud  was  brought  into  court  and  Stokes 
asked  to  put  his  foot  in  the  mud,  and  make  evidence  against  himself 
in  the  presence  of  the  jury.  It  is  said  there  is  an  essential  difference. 
The  difference  in  effect  is  difficult  to  perceive.1  Mr.  Wharton  in 
his  work  on  Homicide,  p.  506,  says :  "  No  principle  of  law  is  better 
settled  than  that  a  person  shall  not  be  compelled  to  be  a  witness,  or 
compelled  to  testify  against  himself.  This  is  a  right  guaranteed  by 
the  Constitution  in  most,  if  not  all  the  States."  And  he  refers  to 
Stokes'  case,  above  referred  to. 

Prisoner's  testimony  used  against  him. 

§  612.  In  Maine  in  a  trial  for  murder,  in  1862,  it  was  held  that  the 
prisoner's  testimony  before  the  coroner's  inquest  upon  the  body  of 
the  person  alleged  to  have  been  murdered,  given  without  objection 
by  him,  before  his  arrest,  though  after  he  had  been  charged  with  the 
murder,  and  after  being  cautioned  that  he  was  not  obliged  to  testify 
to  any  thing  which  might  criminate  himself,  and  not  purporting  to 
be  a  confession,  was  admissible  in  evidence  against  him.2  But  this 
is  a  digression,  and  will  not  be  pursued.  The  direct  question  is,  how 
far  can  the  court  order  a  defendant,  charged  with  the  commission  of 
a  crime,  to  disclose  facts,  or  produce  evidence  which  tends  to  prove 
his  guilt.  On  this  point,  some  of  our  courts  have  gone  to  the  very 
verge  of  the  law,  if  not  beyond  it.  It  is  easy  to  charge  a  man  with 
crime,  but  it  must  be  proved ;  he  is  presumed  to  be  innocent  until 

1  Walker  v.  State,  7  Tex.  App.  246.        8  State  v.  Oilman,  51  Me.  206. 
But  see  Stokes  v.  State.  5  Bait.  (Tenn.) 
619. 


COMPULSORY  PHYSICAL  EXAMINATION.  415 

the  contrary  is  shown,  and  he  cannot  be  compelled  to  show  his  own 
guilt  to  rebut  the  presumption  of  his  own  innocence.* 

*  A  peculiar  case,  that  of  Warlick  v.  White,  76  N.  C.  175,  was  decided  in  1877.  Warlick 
claimed  title  to  lands  formerly  belonging  to  Joseph  Carpenter,  deceased.  Plaintiff  claimed  as 
assignee  of  Mrs.  Eaton,  the  sister  and  only  heir  at  law  of  Carpenter.  The  defendant's  wife, 
Naomi  White,  before  her  marriage  to  White,  was  the  widow  of  Carpenter,  and  claimed  an  un- 
divided half  under  the  will  of  her  former  husband,  and  the  other  half  iu  the  right  of  her  daugh- 
ter Sarah,  who  was  born  shortly  after  the  death  of  Carpenter,  her  father.  Her  legitimacy  was 
in  dispute.  RODMAN,  J.,  said:  "  The  plaintiff  having  introduced  evidence  tending  to  prove  that 
Sarah,  one  of  the  defendants,  was  illegitimate  and  not  the  heir  of  Joseph  Carpenter,  the  de- 
fendant Naomi,  the  mother  of  Sarah,  was  allowed  to  testify  that  she  had  been  faithful  to  the  said 
Joseph  during  his  life,  and  that  no  person  but  him  could  have  been  the  father  of  the  child. 
To  this  evidence  the  plaintiff  excepted,  upon  the  ground  of  incompetency.  *  *  *  The  plaintiff 
then  proposed  to  ask  the  witness  what  was  the  general  character  of  Naomi  White  in  1864  and 
1865  (July,  1865,  was  the  date  of  the  birth  of  the  child  Sarah,  whose  legitimacy  was  in  dispute). ' 
The  judge  excluded  the  question.  *  *  *  Plaintiff  excepted.  *  *  *  As  Naomi  was  a  wit- 
ness, we  think  her  general  character  for  truth  might  be  inquired  into  as  of  the  time  when  she 
testified.  If  the  witness  should  say  that  her  reputation  was  bad  in  that  respect  at  the  time  of 
her  testifying,  it  would  be  open  to  defendants  to  prove,  by  cross-examination  or  otherwise,  that 
her  reputation  had  been  made  bad  by  reason  of  the  charges  made  by  the  plaintiff,  or  by  Law- 
son  Carpenter,  or  others,  respecting  the  legitimacy  of  the  child,  and  that  it  was  good  before .  If 
that  appeared,  it  is  reasonable  to  suppose  that  the  evidence  would  have  no  weight  with  the  jury 
because  it  would  tend  to  establish  the  fact  in  controversy  (the  illegitimacy  of  the  child),  by  a 
reputation  based  on  the  presumption  of  such  illegitimacy.  *  *  *  A  different  rule  would  ap- 
ply as  to  the  reputation  of  the  defendant  Naomi  for  chastity.  It  is  clear  that  a  reputation  for 
want  of  chastity,  acquired  (if  such  was  acquired  at  all),  after  the  death  of  Joseph  Carpenter, 
would  not  .be  competent  upon  the  question  of  the  legitimacy  of  the  child  begotten  during 
his  life-time.  And,  although  it  is  not  so  clear,  we  think  that  such  a  reputation  existing 
during  his  life-tune  would  not  be  competent  for  the  purpose  of  disproving  legitimacy.  When 
the  husband  had  access,  the  presumption  of  paternity  is  very  strong,  though  not  absolutely 
conclusive.  It  can  only  be  met  by  proof  that  it  was  impossible  that  he  could  have  been 
the  father  of  the  child,  as  in  this  case  it  is  attempted  to  be,  by  proof  of  the  color  of  the  child. 
As  the  question  covered  the  whole  general  character,  or  more  properly,  the  general  reputation 
of  the  witness,  we  think  it  was  properly  refused.  The  character  of  Naomi  was  in  issue  only  by 
reason  of  her  being  a  witness.  There  was  nothing  in  the  nature  of  the  action  to  put  her  char- 
acter in  issue  otherwise.  Joseph  Carpenter  and  wife  Naomi,  the  defendants,  were  whites.  The 
plaintiff  alleged  and  gave  evidence  tending  to  prove  that  the  defendant,  Sarah,  was  of  mixed 
blood,  and,  therefore,  could  not  be  the  child  of  said  Joseph .  Rhe  was  examined  by  experts,  who 
testified  on  the  trial  and  differed  in  their  opinions.  The  plaintiff  then  proposed  to  exhibit  the 
said  Sarah  to  the  jury,  for  the  purpose  of  aiding  them,  by  her  appearance,  in  deciding  whether 
she  was  of  mixed  blood  or  not.  The  plaintiff  did  not  otherwise  propose  to  examine  her  as  a 
witness.  The  defendant  objected,  and  the  judge  sustained  the  objection,  and  refused  to  order 
the  said  Sarah  to  be  placed  on  the  witness  stand  for  the  purpose  proposed.  Plaintiff  excepted. 
We  think  the  plaintiff  was  entitled  to  exhibit  Sarah  to  the  jury  in  the  manner  proposed.  It  is 
said  that  such  an  exhibition,  to  be  useful,  must  be  such  as  would  be  indelicate  and  even  inde- 
cent. Mr.  Polk  produced  from  Coke  an  instance  where  a  woman,  whose  then  pregnancy  was  In 
issue,  was  permitted  by  an  inferior  court  to  expose  herself  to  the  jury,  and  the  Superiour  Court 
justly  condemned  it  as  indecent.  No  such  thing  was  proposed,  and  we  confine  ourselves  to 
holding  that  what  was  proposed  should  have  been  allowed .  No  question  arises  as  to  the  man- 
ner in  which  the  attendance  of  the  defendant  for  the  purpose  might  be  enforced.  It  appears 
that  she  was  present  in  court  under  a  subpoena.  If,  however,  an  infant  who  was  a  proper  wit- 
ness should  neglect  to  obey  a  subpoena,  a  court  would  have  no  difficulty  In  enforcing  her  at- 
tendance by  a  writ  of  habeas  corpus  ad  test(ficandutn}  directed  to  the  mother  or  other  person 
having  control  of  her  person. 


CHAPTER  XVI. 

MISTAKEN  IDENTITY 

SFXX  SEC. 

613.  Debtor — bank  deposit  —  execution    622.  Pentonville  prison  case — mistaken 

—  identity.  identity  of  a  prisoner. 

614.  Arrest  —  wrong  name  —  trespass.  623.  Mistaken  identity  in  ancient  his- 

615.  Same  —  rule  in  England.  tory. 

616.  False    personation  —  claiming    an  624.  Same — false  personation  in  ancient 

estate.  history. 

617.  Casali  —  absent  thirty  years  —  re-    625.   (Jncle  executed  —  niece   returned 

turned.  home. 

618.  Mistaken  identity — singular  cases    626.  Corpus  delicti — how  to  be  proved. 

—  England  and  America.  627.  Dead  body — raised  —  indictment — 

619.  Same  —  theft  —  mistaken  identity.  mistake. 

620.  Mistaken  identity  —  Mrs.  McCaf-    628.  Taking    dead    bodies    from    the 

frey's  case.  grave. 

621.  The    Qovan     murder  —  mistaken 

identity 

Debtor  —  bank  deposits  —  execution  —  identity. 

§  613.  Ram  on  Facts,  at  page  462,  gives  the  case  of  Brown  v. 
Seaman 's  Bank,  as  follows  :  "  This  was  an  action  to  recover  two 
deposits  amounting  to  $100.  The  trial  took  place  in  the  Court  of 
Common  Pleas  held  in  Boston,  Mass.,  and  the  following  report 
of  it  was  published  in  the  Boston  Daily  Advertiser  :  The  plaintiff 
was  a  seaman  and  had  but  one  arm.  The  first  deposit  was  made  by 
his  wife,  Emily  Jane,  who  signed  the  book  by  a  cross.  The  second 
deposit  was  made  by  the  plaintiff  himself,  who  was  not  required 
to  sign.  Sometime  after  he  had  gone  to  sea,  a  provision  seller  in 
Broad  street  sued  John  Brown,  a  Scotchman,  for  balance  of  ac- 
count, and  attached  the  Seaman's  Bank  as  trustee.  The  principal 
and  trustee  being  defaulted,  the  provision  seller  took  out  execution, 
and  sent  an  officer  to  the  bank,  demanding  these  deposits.  The 
officers  of  the  bank  denied  the  identity  of  the  debtor,  John  Brown, 
as  being  the  same  John  Brown  who  deposited  the  money.  After 
some  parley,  the  provision  dealer  gave  a  bond  of  indemnity  to  the 
bank,  and  the  money  was  paid  over.  Some  months  after  these  tran- 
sactions, the  real  depositor,  John  Brown,  came  home  from  sea  and  car- 
ried his  bank  book  to  the  bank  to  withdraw  a  small  sum,  which  was 
refused  upon  the  ground  that  all  his  funds  had  been  paid  out  on  the 
execution.  To  remedy  this  injustice,  this  action  was  brought,  and 
the  bank  was  defended  by  the  provision  seller  under  the  bond  of  in- 


MISTAKEN  IDENTITY.  417 

demnity.  Among  other  evidence,  the  plaintiff's  counsel  produced 
the  John  Brown  who  was  sued  by  the  butcher.  He  testified  he 
owed  the  debt ;  that  he  never  deposited  any  money  in  the  savings 
bank ;  that  his  wife's  name  was  Jean,  not  Emily  Jane ;  that  he 
did  not  get  his  summons  in  the  trustee  case  until  the  court  was  over, 
and  that  the  other  John  Brown  was  also  a  Scotchman,  and  like  him, 
had  but  one  arm,  and  that  he  knew  him.  The  wife  of  the  witness 
was  also  examined,  and  testified  she  never  deposited  any  money  in 
the  bank,  and  never  went  by  the  name  of  Emily  Jane.  Under  these 
circumstances,  the  plaintiff  obtained  a  verdict."* 

*  In  the  noted  Tichborne  case  in  England,  involving  a  large  estate  and  depending  upon  the 
identity  of  one  who  claimed  the  estate,  the  trial  lasted  one  hundred  and  three  days.  Whart. 
&  Stille  in  then-  Med.  Jur.,  vol.  3,  §623,  referring  to  this  case,  say  :  "A  roving  impostor  — to 
take  the  adverse  view  —  named  Orton,  alias  Castro,  alias  Doolan,  so  arranged  to  personate  a 
baronet  of  the  United  Kingdom,  and  the  heir  to  a  large  entailed  estate,  that  he  *  *  * 
•was  sworn  to  be  Sir  Roger  Tichborne  by  eighty-five  witnesses,  comprising  Sir  Roger's 
mother,  the  family  solicitor,  'one  baronet,  six  magistrates,  one  general,  three  colonels, 
one  major,  two  captains,  thirty-two  non-commissioned  officers  and  privates  in  the  army, 
four  clergymen,  seven  tenants  of  the  Tichborne  estates,  and  seventeen  servants  of  the  family.' 
The  claimant's  case,  however,  broke  down  on  cross-examination."  The  Lord  Chief  Justice 
COCKBUBNE,  hi  summing  up  (as  appears  in  the  report  printed  in  London  in  1874,  page  4), 
said:  "Now,  the  question  is  one  of  identity,  and  it  is  no  doubt  one  of  the  most  difficult 
questions  with  which  the  courts  of  justice  and  juries  have  to  deal.  They  are  mostly  cases 
in  which  the  persons  to  be  identified  have  only  been  seen  for  a  moment  or  for  a  short  time.  A 
man  stops  you  on  the  highway,  puts  a  pistol  to  your  head,  and  demands  your  purse;  a  garro- 
ter  seizes  your  throat,  and  while  you  are  half  strangled,  his  confederate  rifles  your  pocket;  a 
burglar  invades  your  dwelling  by  night,  and  you  have  only  a  rapid  glance  at  your  unwelcome 
visitor  —  hi  all  these  cases  the  opportunity  of  observation  is  so  brief  that  mistake  is  possible;  and 
yet  the  lives  of  people  would  not  be  safe  if  we  did  not  act  on  recollections,  even  though  they  are 
so  brief.  There  are  cases  in  which  recollection  of  witnesses  has  proved  faulty.  I  recollect  a 
case  on  the  western  circuit  in  which  two  men  were  tried  for  murder  and  both  convicted  —  one 
on  his  identity  being  sworn  to  by  numerous  persons.  If  execution  had  followed  as  rapidly  then 
as  it  was  accustomed  to  do  in  earlier  times,  he  would  have  been  executed;  but  it  was  proved 
afterward,  beyond  all  possibility  of  doubt,  that  those  who  had  sworn  to  the  identity  of  the  man 
were  mistaken.  He  had  committed  an  offense  of  picking  a  pocket  hundreds  of  miles  away,  and 
when  the  murder  had  been  committed,  he  was  in  confinement  at  the  time  under  that  charge. 
There  was  not  the  slightest  doubt  in  the  world  about  it,  and  the  man  was  released.  I  tried 
a  case  myself  not  long  ago,  at  Hereford,  where  a  man  was  charged  with  night  poaching, 
and  with  a  most  serious  assault  upon  the  keeper. 

"The  keeper  swore  positively  to  the  prisoner.  He  was  a  respectable  man,  head  keeper  of  a 
nobleman  hi  the  county,  nobody  could  doubt  his  voracity,  or  intention  to  tell  the  truth.  He 
swore  to  the  man  most  positively.  I  had  myself  not  the  slightest  doubt  of  his  testimony.  The 
jury  convicted  the  prisoner.  It  turned  out  afterward  that  we  were  all  wrong,  for  it  was  proved 
satisfactorily  that  he  had  been  taken  for  another  man.  And,  therefore,  I  quite  agree 
with  what  was  said  by  the  learned  counsel  for  the  defendant  —  that  identity  was  a  very  dif- 
ficult point;  and  here  it  is  the  question  at  issue.  But  in  the  cases  I  am  speaking  of,  you  have 
merely  the  evidence  of  persons  who  had  only  a  short  and  casual  opportunity  of  becoming 
acquainted  with  the  appearance  of  the  person  whose  identity  is  disputed.  Here  we  have  a 
much  wider  field  of  inquiry,  but  at  the  same  time  it  is  an  inquiry  which  has  its  own  peculiar  dif- 
ficulties. For  whereas  in  the  cases  to  which  I  have  referred,  the  recollection  is  called  forth 
speedily  after  the  event,  here  we  are  dealing  with  the  identity  of  a  man  alleged  to  have  been 
dead  ever  since  the  year  1854  —  now  twenty  years  ago  —  and  the  asserted  identity  of  another 
man  who  has  disappeared  from  the  knowledge  of  all  those  who  knew  the  undoubted  man  for  a 
great  number  of  years  —  from  the  year  1854  till,  at  all  events,  the  year  1866  or  1867,  when  he 
first  came  forward .  If  in  ordinary  cases  evidence  of  identity  is  calculated  to  mislead  us  or  to 

53 


418  THE  LAW  OF  IDENTIFICATION. 

Arrest  —  wrong  name  —  trespass. 

§  614:.  A  defendant,  who  was  in  custody  on  mesne  process,  showed 
by  his  affidavit  that  he  was  baptized  by  the  name  of  Berend  at 
Memel,  in  the  Kingdom  of  Prussia,  and  had  always  gone  by  that 
name,  and  had  never,  to  his  knowledge,  been  called  by  the  name  of 
jBernard,  until  the  sheriff  arrested  him  by  that  name,  on  which 
ground  Onslow,  Sergeant,  obtained  a  rule  nisi,  for  discharging  him 
out  of  custody,  and  cited  authorities  on  the  point  raised.  LAWRENCE, 
J.,  said  :  "  Those  cases  go  to  the  length  of  showing  that,  if  the  sheriff 
arrests  a  man  who  is  named  in  the  writ  by  another  name  than  his 

embarrass  us,  how  much  more  so  must  it  be  in  a  case  like  the  present,  when  you  have  a  host  of 
witnesses  confronted  with  an  equal  number  on  the  one  side  and  the  other;  when  you  have  an 
entire  family  —  for  I  really  do  not  value  the  evidence  of  Mr.  Biddulph  —  on  the  one  side,  but 
you  have  on  the  other  a  whole  body  of  persons  as  familiar  with  Roger  Tichborne,  whose  exist- 
ence is  in  dispute,  as  it  Is  possible  for  people  to  be,  denying  the  identity  of  the  claimant;  and 
on  the  other  hand,  the  mother  of  the  undoubted  Roger  Tichborne  asserting  that  he  is  her  son; 
heaps,  I  may  say,  of  witnesses  coming  forward  to  say  that  he  is  not  the  man,  an  equal  or  per- 
haps greater  number  coming  forward  to  say  that  he  is  T  And  we  have  the  matter  still  further 
complicated  by  this  extraordinary  circumstance,  that  while  the  defendant  says  'I  am  Roger 
Tichborne  1  and  produces  numerous  witnesses  to  swear  that  he  is,  and  another  vast  array  of 
witnesses  come  forward  to  say  that  he  is  not,  we  have  the  identity  of  the  person  who  claims  to 
be  Roger  Tichborne  asserted  with  reference  to  a  totally  different  individual.  And  what  is 
equally  strange,  the  same  conflict  which  occurs  with  reference  to  his  identity  with  Roger 
Tichborne  occurs  with  reference  to  his  identity  with  that  other  person  —  Arthur  Orton;  and 
you  have  witness  after  witness  produced  to  say  that  he  is  Arthur  Orton,  and  witness  after  wit- 
ness declaring  that  he  is  not." 

One  of  the  most  peculiar  cases  of  mistaken  identity  was  that  of  Martin  Guerre,  so  often  re- 
ferred to  in  the  books.  I  hare  not  the  space  to  give  it,  even  as  we  find  it  condensed,  but  in  sub- 
stance, Guerre  married  at  the  age  of  eleven  years  to  a  wife  of  the  same  age,  whose  name  was 
Mademoiselle  Bertrande  del  Role  of  Artigues.  In  the  ninth  year  after  their  marriage,  a  third 
was  added  to  the  family  circle;  a  boy,  named  Sanxi.  Clouds  came  over  the  domestic  sky,  Mar- 
tin, fearing  the  displeasure  of  his  father,  absented  himself  for  an  agreed  period  of  eight  days, 
but  eight  years  elapsed  before  his  return.  One  evening  a  visitor  called,  or  rather  a  traveler  claim- 
Ing  to  be  Guerre,  presented  himself  as  the  pentinent  husband,  resolved  to  atone  for  the  past  of- 
fense. No  one  questioned  that  the  visitor  was  Martin  Guerre.  His  own  sisters,  his  uncle,  and 
every  member  of  his  wife's  family  then  at  hand,  acknowledged  him  without  an  instant's  hesita- 
tion; for  not  only  was  the  new  arrival  identical  in  form  and  features  with  Martin  Guerre,  but  he 
showed  himself  familiar  with  circumstances  which  could  be  known  only  to  Martin.  Madame 
Guerre,  whose  attachment  had  never  diminished,  received  him  with  tokens  of  the  fondest  affec- 
tion; they  lived  together  three  years,  and  she  presented  him  with  two  children;  after  which  sus- 
picion arose  in  the  mind  of  Pierre  Guerre,  Martin's  uncle.  Bertrande,  the  deceived  wife,  was  in- 
duced to  Invoke  the  vengeance  of  the  law  on  the  impostor.  He  was  arrested.  He  made  an  elo- 
quent defense,  stoutly  maintaining  his  identity  with  Martin  Guerre;  explained  his  absence,  gave 
a  history  of  the  circumstances  of  the  seven  or  eight  years,  served  as  a  soldier  and  passed  into  the 
service  of  the  king  of  Spain,  at  length  returned  to  his  wife,  and  was  recognized  by  all.  He  an- 
swered every  question  of  family  history,  the  time  of  his  birth,  and  the  family  relations,  gave 
the  day  and  year  of  his  marriage,  parties  present,  the  incidents  of  the  occasion,  dresses  of  the 
Kiipflts.  and  the  incidents  of  the  next  day.  Spoke  of  his  son  Sanxi;  Bertrande  corroborated  all 
these,  but  denied  that  he  was  her  husband.  One  hundred  and  fifty  witnesses  were  summoned 
—  forty  identified  him  unquestionably  as  Guerre.  A  great  body  of  witnesses  positively  identified 
him  as  Arnaud  du  Tihl,  called  "  Pansette,"  some  having  known  him  from  his  cradle.  Sixty  wit- 
nesses affirmed  that  BO  close  was  the  resemblance  they  dared  not  announce  an  opinion.  He  was 
convicted  and  executed.  He  made  a  full  confession.  He  was  Arnaud  du  Tihl.  He  declared 
that  Imposture  had  first  suggested  Itself  to  him  on  his  being  mistaken  by  intimate  friends  of 
Martin  Guerre  for  that  individual  himself.  From  them  and  others  hegleaned  all  necessary  par- 
ticulars of  the  pant  life  and  ways  of  the  man  he  proposed  to  personate. 


MISTAKEN  IDENTITY.  419 

true  name,  the  sheriff  will  be  a  trespasser,  and  is  liable  to  an  action 
of  false  imprisonment,  and  perhaps  the  plaintiff  is  so  likewise,  and 
they  are  equally  liable,  whether  the  court  summarily  interfere  or  not."1 

Same  —  rule  in  England. 

§  615.  A  writ  was  sued  out  against  a  defendant  by  the  name  of 
John,  and  common  bail  filed  against  him  by  the  same  name,  and  the 
plaintiff  declared  against  him  as  fiichard  (his  real  name),  sued  by 
the  name  of  John,  on  which  Espinasse  obtained  a  rule  nisi  to  set 
aside  the  proceedings  for  irregularity,  against  which  Richardson 
now  showed  cause  by  citing  Oakley  v.  Giles,  3  East,  167.  But  the 
court  observed  that  the  application  to  set  aside  the  proceedings  for 
irregularity  was  not  made  till  after  judgment,  and  when  the  de- 
fendant might  have  before  pleaded  in  abatement;  but  here  it  is  be- 
fore plea,  and  the  rule  was  made  absolute.2  Another  case  in  England 
was  one  in  which  the  defendant,  whose  Christian  name  was  Edward, 
was  served  with  a  writ,  in  which  he  was  sued  by  the  name  of 
William,  and  not  having  appeared  to  it,  the  plaintiff  filed  common 
bail  for  him  in  his  right  name  of  Edward,  sued  by  the  name  of  Wil- 
liam, and  served  him  with  notice  in  the  same  manner  as  to  names,  and 
took  an  interlocutory  judgment,  and  gave  notice  of  executing  a  writ 
of  inquiry,  and  the  proceedings,  on  motion,  were  set  aside.3 

False  personation  —  claiming  an  estate. 

§  616.  It  is  stated  that  at  the  period  of  the  revocation  of  the  edict 
of  Nantes,  the  Sieur  De  Caille  fled  to  Savoy,  he  being  a  Protestant. 
At  Yevay  his  son  died  before  his  eyes.  Some  years  after,  an  im- 
postor pretended  that  he  was  the  son  of  this  person,  and  claimed  his 
estate.  He  was  imprisoned  and  his  case  remained  before  the 
Parliament  of  Aix  for  seven  years.  Hundreds  of  witnesses  (among 
which  were  the  nurses  and  domestics  of  the  family)  swore  that  he 
was  the  son  of  De  Caille,  and  the  public  sentiment  was  strongly 
in  his  favor,  as  he  was  a  Catholic.  Testimonials  sent  from  Switzer- 
land that  the  real  son  was  dead  were  of  no  avail ;  and  the  Parlia- 
ment declared  in  1706,  that  he  was  what  he  pretended  to  be.  The 
wife  of  this  impostor  shortly  after  discovered  that,  although  she 
had  been  silent,  yet  his  elevation  would  not  profit  her ;  she,  therefore, 
began  to  mention  who  he  actually  was,  and  on  appeal  the  cause  was 
transferred  to  the  Parliament  of  Paris.  The  evidence  adduced 
showed  that  the  late  son  of  De  Caille  had  some  distinguishing 

1  Wilks  v.  Lorck,  2  Taunt.  399.  *  Dring  v.  Dickenson,  11  East,  225. 

3  Delanoy  v.  Cannon,  10  East,  328. 


420  THE  LAW  OF  IDENTIFICATION. 

peculiarities  in  shape  and  make  —  he  was  of  small  height,  and  his 
knees  approached  each  other  very  closely  in  walking.  A  long  head, 
light  chestnut  hair,  blue  eyes,  aquiline  nose,  fair  complexion,  and  a 
high  color,  were  his  other  characteristics.  The  stature  of  the  im- 
postor (Pierre  Mege,  a  soldier)  was,  on  the  contrary,  five  feet  six 
inches ;  and  his  black  hair,  brown  and  thin  complexion,  flat  nose 
and  round  head,  sufficiently  distinguished  him  from  the  former 
individual.  It  was  decided  that  he  was  an  impostor.1 

Casali  —  absent  thirty  years  —  returned. 

§  617.  The  same  author  gives  another  case  substantially  as  follows : 
"A  noble  Bolognese  named  Casali  left  his  country  at  an  early  day 
and  engaged  in  military  pursuits.  He  was  supposed  to  have  lost  his 
life  in  battle ;  but,  after  an  absence  of  thirty  years,  returned  and 
claimed  his  property,  which  his  heirs  had  already  appropriated  to 
themselves.  Although  there  were  some  marks  which  appeared  to 
identify  him,  yet  the  change  in  appearance  was  so  great  that  none  who 
remembered  the  youth  were  willing  to  allow  that  this  was  the  in- 
dividual. He  was  arrested  and  imprisoned.  The  judges  were  in 
great  doubt  and  consulted  Zacchias  whether  the  human  countenance 
could  be  so  changed  as  to  render  it  impossible  to  recognize  the  per- 
son. This  distinguished  physician,  in  his  consultation,  assigns  several 
causes  which  might  produce  such  an  alteration,  as  age,  change  of  air, 
ailments,  the  manner  of  life,  and  the  diseases  to  which  we  are  liable. 
Casali  had  departed  in  the  bloom  of  youth  ;  he  then  entered  on  the 
hardships  of  a  military  life,  and  if  the  narrative  given  by  him  was  to 
be  credited,  he  had  languished  for  years  in  prison.  All  these  causes, 
he  conceived,  might  produce  a  great  change  in  the  countenance,  and 
render  it  difficult  to  recognize  him.  The  judges,  on  receiving  this 
opinion,  examined  into  the  physical  marks,  and  as  the  heirs  could 
not  prove  the  death  of  Casali,  his  name  and  estate  were  dec  rood  to 
him  and  he  put  in  possession  thereof.2 

Then  the  author  adds  these  appropriate  lines  from  Ma/rmion  : 

"  Danger,  long  travel,  want  and  woe, 
Soon  change  the  form  that  best  we  know, 
For  deadly  fear  can  time  outgo, 
And  blanch  at  once  the  hair; 
Hard  toil  can  roughen  form  and  face, 
And  want  can  quench  the  eye's  bright  grace, 
Nor  does  old  age  a  wrinkle  trace, 
More  deeply  than  despair." 
1 1  Beck  Med.  Jur.  675.  *  1  Beck  Med.  Jur.  678. 


MISTAKEN  IDENTITY.  421 

Mistaken  identity  —  singular  cases  —  England  and  America. 

§  618.  Singular  cases  are  presented,  one  by  Mr.  Kara,  in  his  Facts 
at  page  459.  He  says  :  "  The  following  account  was  published  in 
the  Fayettemlle  North  Carolinian,  as  having  occurred  in  Orange 
county,  North  Carolina.  A  married  woman  whose  husband  was  off 
at  work  about  thirty  miles,  was  attacked  one  night  by  a  negro  man, 
who  succeeded  no  f  urther^than  to  frighten  her  very  much.  She  forth- 
with gave  information,  and  had  a  free  negro  in  the  neighborhood 
arrested.  The  trial  came  on,  and  she  swore  positively  that  the  free 
negro  was  the  man.  Another  witness,  an  old  man  who  was  passing 
by  the  house  just  before  the  act  was  committed,  also  swore  that  he 
had  met  this  free  negro,  and  that  the  free  negro  spoke  to  him  (at 
some  distance),  and  asked  him  if  the  man  who  lived  at  that  house  was  at 
home,  and  if  there  were  any  dogs  there.  The  old  man  told  him  that  the 
man  was  not  at  home,  and  that  there  were  no  dogs  there.  The  free 
negro  proved  by  two  highly  respectable  young  gentlemen,  that  he  was 
at  their  father's  house  on  the  very  night,  and  at  the  very  hour  when  the 
act  was  said  to  be  committed.  What  would  have  been  done  with  the 
negro  is  hard  to  say,  under  the  circumstances,  had  not  the  matter  taken 
quite  a  new  turn.  It  so  happened,  as  many  other  strange  things 
happen,  that  there  was  a  slave  man  or  boy  in  the  neighborhood,  the 
very  counterpart  of  the  free  negro  as  to  color,  face  and  form,  and 
belonging  to  the  father  of  the  young  gentlemen  who  testified  that 
the  free  negro  was  at  their  house  on  the  night  of  the  crime.  The 
slave  boy  confessed  that  it  was  him  that  committed  the  crime,  and 
not  the  free  negro.  The  confession  was  made  to  the  clerk  of  the 
court,  and  also  to  one  of  the  counsel ;  of  course  he  was  immediately 
arrested.  This  put  a  new  aspect  on  the  matter,  and  the  two  pris- 
oners were  brought  into  court.  The  woman  was  then  directed  to 
point  out  the  man,  and  she  still  declared  it  was  the  free  negro.  The 
old  man  witness  was  then  called  on,  and  he  -decided  it  was  the  free 
negro.  Such  is  the  tenacity  with  which  people  cling  to  first  im- 
pressions, and  originally  expressed  opinions.  But  what  is  stranger 
than  all,  the  very  counselor  to  whom  the  slave  man  made  the  con- 
fession, when  asked  to  point  out  the  man  that  made  the  confession, 
pointed  to  the  free  negro.  But  the  clerk  of  the  court,  to  whom  also 
he  confessed,  knew  the  slave  perfectly  well,  and  had  known  him 
from  a  boy  ;  he  very  readily  corrected  the  mistake  made  by  the 
counselor.  Another  singular  circumstance  is,  that  the  woman 
should  make  such  a  mistake,  when  the  free  negro  had  been  em- 


422  THE  LAW  OF  IDENTIFICATION. 

ployed  about  the  premises  for  a  day  or  two  in  plowing,  which  cir- 
cumstance also  proved  something  in  his  favor,  from  the  fact  that  he 
knew  that  the  woman's  husband  was  not  at  home,  and  that  there 
were  no  dogs  there,  and  consequently  would  not  have  asked  the  old 
man  the  questions  which  were  asked  by  the  slave.  At  the  same 
time  such  knowledge  might  also  be  made  to  operate  against  him. 
The  slave  confessed  that  he  had  deceived  the  old  man  in  this  way  ; 
he  hallooed  to  the  old  man  and  asked  him  how  he  was ;  and  the  old 
fellow  returned  the  salutation  and  asked  him  if  that  was  Ben  (the 
free  negro).  The  boy,  finding  that  he  was  not  known,  did  not  dis- 
cover himself,  but  carried  out  the  deception  by  answering  in  the 
affirmative.  The  boy  also  said  (as  he  was  naturally  a  wild  boy, 
many  believed  it  to  be  true)  that  he  had  no  intention  of  doing  any 
harm ;  only  intended  to  frighten  the  woman  ;  that  he  did  not  start 
from  home  with  any  intention  of  such  a  thing,  but  just  as  he  got 
near  the  house,  the  devil  seemed  to  put  it  into  his  head  to  do  some 
mischief.  The  free  negro  was  released,  and  the  slave  boy  was  hung. 
The  evidence  of  the  woman  and  the  old  man  made  such  an  impres- 
sion against  the  free  negro,  that  some  were  loth  to  believe  but  that  it 
was  him ;  but  the  slave  persisted  in  his  statement  of  his  own  guilt, 
and  said  just  before  he  was  hung  that  it  was  all  right ;  he  was  the 
one,  and  not  the  free  negro." 

Same  —  theft  —  mistaken  identity. 

§  619.  A  case  not  dissimilar  to  the  above  is  copied  from  an  Eng- 
lish paper  by  the  same  author,  at  page  461,  entitled  the  case  of 
Greenwood.  "  A  young  gentleman,  articled  to  an  attorney  in  Lon- 
don, was  tried  on  five  indictments  for  different  acts  of  theft.  A 
person  resembling  the  prisoner  in  size  and  general  appearance  had 
called  at  various  shops  in  the  metropolis,  for  the  purpose  of  looking 
at  jewelry,  books  and  other  articles,  with  the  pretended  intention  of 
making  purchases,  but  managed  to  make  off  with  the  property 
placed  before  him,  while  the  shopkeepers  were  engaged  in  looking 
out  other  articles.  In  each  of  these  cases,  the  prisoner  was  posi. 
lively  identified  by  several  persons,  while  in  a  majority  of  them  an 
alibi  was  clearly  and  positively  established,  and  the  young  man  was 
proved  to  be  of  orderly  habits  and  irreproachable  character,  and  un- 
der no  temptation  from  want  of  money,  to  resort  to  acts  of  dis- 
honesty. Similar  depredations  on  other  tradesmen  had  been  com- 
mitted by  a  person  resembling  the  prisoner;  and  those  proved 


MISTAKEN  IDENTITY.  423 

that,  though  there  was  a  considerable  resemblance  to  the  pris- 
oner, he  was  not  the  person  who  had  robbed  them.  The 
prisoner  was  convicted  on  one  indictment,  but  acquitted  on 
all  the  others;  and  the  judge  and  jurors  who  tried  the  last 
three  cases  expressed  their  conviction  that  the  prisoner  had 
been  mistaken,  and  that  the  prosecutors  had  been  robbed  by  an- 
other person  resembling  the  prisoner,,  A  pardon  waa  imme- 
diately procured  in  respect  of  that  charge  upon  which  the  conviction 
had  taken  place.  Not  many  months  before  the  last-mentioned  case, 
a  respectable  young  man  was  tried  for  a  highway  robbery  com- 
mitted in  1 1  ie  neighborhood  of  Betlmal  Green,  in  which  neighbor- 
hood both  he  and  the  prosecutor  resided.  The  prosecutor  swore 
positively  that  the  prisoner  was  the  man  who  robbed  him  of  his 
watch.  The  counsel  for  the  prisoner  called  a  genteel  young  woman, 
to  whom  the  prisoner  paid  his  addresses,  who  gave  evidence  which 
proved  a  complete  alibi.  The  prosecutor  was  then  ordered  out  of 
court,  and  in  the  interval,  another  young  man  of  the  name  of  Green- 
wood, who  awaited  his  trial  on  a  capital  charge  of  felony,  was  intro- 
duced and  placed  by  the  side  of  the  prisoner.  The  prosecutor  was 
again  placed  in  the  witness  box,  and  addressed  thus :  '  Remember, 
sir,  the  life  of  this  young  man  depends  upon  your  reply  to  the  ques- 
tion that  I  am  about  to  put.  Will  you  swear  again  that  the  young 
man  at  the  bar  is  the  person  who  assaulted  you? '  The  witness  turned 
his  head  towards  the  dock,  when  beholding  two  men  so  nearly  alike, 
he  became  petrified  with  astonishment,  dropped  his  hat,  and  was 
speechless  for  a  time,  but  at  length  declined  swearing  to  either.  The 
young  man  was  of  course  acquitted.  Greenwood  was  tried  for  an- 
other offense  and  executed,  and  a  few  hours  before  his  death  ac- 
knowledged that  he  had  committed  the  robbery  with  which  the 
other  was  charged."* 

*  In  Harris'  "  Before  and  at  Trial "  (Kerr's  Am.  ed.),  372,  it  is  said:  "  There  are  several  inter- 
esting cases  on  record  where  the  remains  of  persons  supposed  to  be  dead  have  been  identified, 
and  such  death  clearly  proved  by  circumstantial  evidence,  and  the  supposed  dead  person 
subsequently  reappeared ;  and  also  where  persons  have  been  identified  as  the  party  guilty  of 
some  heinous  crime,  and  executed  therefor,  and  it  was  subsequently  ascertained  that  the 
person  was  not  the  wretch  it  was  thought,  but  an  entirely  different  and  innocent  one.  Cases 
like  this  are  so  common  that  the  testimony  as  to  identity  should  be  received  with  great  caution, 
not  only  on  criminal  trials,  but  in  the  ordinary  affairs  of  life.  A  case  has  been  brought  to  our 
notice  of  a  man  having  been  singled  out  from  a  crowd  of  more  than  twenty  people  as  the  man 
who  had  done  a  certain  act  at  a  certain  time,  in  the  doing  of  which  there  was  much  conversation, 
and  an  occurrence  of  peculiar  circumstances,  all  of  which  were  detailed  by  the  witness,  who 
was  a  person  of  unusual  intelligence  and  penetration.  And  yet  the  next  day  it  was  proved  be- 
yond a  doubt  that  the  man  was  not  the  person  in  question,  and  that  he  had  been  far  away  from 
the  scene  at  the  time  of  the  alleged  action.  While  it  is  true  that  we  must  all  trust  to  the  evi. 
dence  of  our  senses,  yet  the  testimony  of  very  few  people  is  entirely  trustworthy  as  to  identity. 


424  THE  LAW  OF  IDENTIFICATION. 

Mistaken  identity  —  Mrs.  McCaffrey's  case. 

§  620.  Mr.  Ram,  in  his  work  on  Facts,  gives  a  most  singular  case 
of  mistaken  identity,  for  which  he  might  well  afford  to  vouch,  it 
having  been  published  in  a  newspaper.  He  says  :  "  The  following 

It  is  not  every  person,  not  even  every  intelligent  person,  who  really  sees  what  is  before  his  eyes. 
Indeed,  much  of  the  discrepancy  hi  evidence,  which  counsel  and  judges  have  to  sift  and  har- 
monize, results  from  the  fact,  as  every  lawyer  of  experience  knows,  that  people  do  not  really 
see  what  they  think  they  see.  And  as  to  personal  identity  there  is  such  likeness  as  well  as  such 
difference  between  many  individuals,  that  persons  who  have  not  a  clear  and  quick  perception 
of  form  and  color  and  expression,  may  very  easily  mistake  one  man  or  woman  for  another,  es- 
pecially when  they  are  led  that  way  by  the  inquiries  of  an  interested  investigator." 

"A  case  of  the  first  kind  above  referred  to  occurred  at  Benton,  Illinois,  in  1866.  A  skeleton  was 
found  in  the  woods,  and  the  jury  of  inquest  declared  it  to  be  the  skeleton  of  a  young  man  named 
Henry  Mahorn,  who  was  supposed  to  have  enlisted  in  the  army;  but  on  inquiry,  it  was  found 
that  he  had  not  been  heard  from  subsequent  to  the  time  of  his  supposed  enlistment;  which  cor- 
roborated the  finding  of  the  jury.  The  clothing  attached  to  the  body  was  identified  as  having 
belonged  to  Mahorn,  and  certain  teeth  were  found  to  have  been  extracted  during  his  life-time, 
which  teeth  were  found  wanting  in  the  skeleton.  A  young  man  named  Daniel  Williams  was 
last  seen  in  the  company  of  Mahorn,  being  on  their  way  to  enlist  as  substitutes.  Williams  re- 
turned and  reported  that  Mahorn  had  enlisted  in. the  Tenth  Volunteers.  This  was  found  to  be 
false,  and  Williams  was  arrested  and  brought  to  trial.  The  circumstances  pointing  to  the  guilt 
of  the  prisoner  were  so  strong  that  nine-tenths  of  the  community  were  satisfied  of  his  guilt.  In 
the  midst  of  the  trial  Henry  Mahorn  appeared  in  the  court -room  to  the  utter  astonishment  of 
all.  he  having  enlisted  under  an  assumed  name,  and  being  discharged  by  reason  of  the  expira- 
tion of  the  time  of  service,  had  returned  to  his  home  to  learn  of  his  supposed  death.  The  judge 
at  once  ordered  the  release  of  the  prisoner." 

"The action  of  the  court  in  this  case  was  very  different  from  what  it  was  in  that  of  M.  de 
la  Privadifcre,  which  is  one  of  the  most  singular  instances  of  criminal  precipitation  that  the 
annals  of  French  justice  furnish.  Madame  de  Chauvelin,  his  second  wife,  was  accused  of 
having  had  him  assassinated  in  his  castle.  Two  servant  maids  were  witnesses  of  the  murder, 
his  own  daughter  heard  the  cries  and  last  words  of  her  father,  which  were  '  My  God,  have 
mercy  upon  me.'  One  of  the  maid  servants  falling  dangerously  ill  took  the  sacrament,  and 
while  she  performed  the  solemn  act  of  religion,  declared  before  God  that  her  mistress  in- 
tended to  kill  her  master.  Several  other  witnesses  testified  that  they  had  seen  linen  stained 
with  his  blood;  others  declared  that  they  had  heard  the  report  of  a  gun  by  which  the  assas- 
sination was  supposed  to  have  been  committed.  And  yet,  notwithstanding,  it  turned  out 
after  all  that  there  was  no  gun  fired,  no  blood  shed,  nobody  killed .  M.  de  la  Privadifcre  re- 
turned home;  he  appeared  in  person  before  the  judges  of  the  province,  who  were  preparing 
every  thing  to  execute  vengeance  on  his  murderer,  and  strange  to  relate,  the  judges,  who  were 
resolved  not  to  lose  their  process,  afflrmed  in  his  face  that  he  was  dead;  they  branded  him 
with  the  accusation  of  an  impostor  for  saying  that  he  was  alive  ;  they  told  him  that  he  deserved 
exemplary  punishment  for  coining  a  lie  before  the  tribunal  of  justice,  and  maintained  that  their 
procedure  was  more  creditable  than  his  testimony .  It  is  related  that  this  criminal  process  con- 
tinued eighteen  months  before  the  poor  gentleman  obtained  a  declaration  of  the  court  that  he 
was  alive." 

"  One  of  the  singular  cases  of  bereavement  by  the  sinking  of  the  Metis  a  few  years  ago  was 
complicated  with  interesting  circumstances,  and  a  strange  confusion  of  personalities.  A  husband 
who  was  saved,  lost  the  wife  he  had  married  only  two  days  before,  and  finding  a  body  which  he 
recognized  as  here,  he  had  it  coffined  and  taken  to  the  house  of  her  parents,  where  it  was  found 
to  be  the  body  of  a  stranger ;  but  the  hopes  rallied  by  this  remarkable  mistake  were  dashed  by  the 
discovery  that  the  dead  body  of  her  who  was  really  his  wife  had  been  picked  up  by  a  schooner  and 
taken  to  Newport.  This  adds  another  to  the  numerous  recorded  cases  of  mistaken  identity,  which 
are  almost  countless,  and  which  are  becoming  so  frequent  of  late  as  very  much  to  impair  the  value 
of  the  clearest  and  most  positive  testimony,  as  to  whether  a  certain  person  was  at  a  certain  place 
at  a  certain  time.  If  any  testimony  as  to  identity  of  person  can  be  trusted,  is  it  not  that  of  a  man 
as  to  the  woman  whom  he  has  courted  and  just  married,  and  whose  face  and  other  personal  traits 
might  be  reasonably  supposed  to  be  clearly  and  indelibly  fixed  upon  his  memory? "  *  *  * 
Another  case  Is  given,  as  follows:  "We  had  recently  from  England  the  report  of  another  case 
of  mistaken  Identity,  which,  but  for  the  ability  of  the  person  mistaken  to  establish  an  alibi,  would 


MISTAKEN  IDENTITY.  425 

case,  beyond  all  question  authentic,  we  extract  from  a  New  York 
paper :  '  On  the  9th  inst.,  the  police  found  at  132  Cherry  street, 
New  York,  and  conveyed  to  the  morgue,  the  body  of  an  unknown 
woman,  who  was  supposed  to  have  been  murdered.  Her  skull  was 
fractured  as  if  by  a  blunt  instrument.  Ellen  Davis,  241  West 
Fourteenth  street,  called  at  the  morgue  the  day  after  the  body  of 
the  woman  was  sent  there,  and  identified  it  as  that  of  her  mother, 

have  had  deplorable  and,  perhaps,  ruinous  results.  At  the  Salford  Hundred  Sessions,  a  young 
man  about  thirty  years  of  age,  named  Higgins,  a  professor  of  music,  and  organist  at  St.  George's 
Church,  Manchester,  was  put  upon  trial  on  an  indictment  for  stealing  thirteen  billiard  balls 
about  a  month  before.  He  had  been  arrested,  handcuffed,  and  taken  hi  irons  from  the  Man- 
chester detective  office  to  the  town  of  Oldham,  where  the  magistrates  committed  him  to  prison 
for  trial.  He  protested  his  innocence,  and  was  able  to  procure  bail.  The  evidence  was  clear 
and  positive.  A  pawnbroker,  with  whom  the  balls  were  pledged,  identified  him  as  the  man  who 
had  pawned  them,  and  the  pawnbroker's  assistant  gave  the  same  testimony,  and  also  swore 
that  he  saw  this  very  man  in  a  barber's  shop  in  Manchester.  Higgins  was  able  to  show  that 
his  reputation  was  perfectly  good  ;  but  the  evidence  was  so  decisive  that  if  he  had  happened  to 
be  alone  at  the  tune  of  the  alleged  pawning,  and  the  presence  hi  the  barber's  shop,  he  must 
surely  have  been  convicted  and  imprisoned,  and  probably  ruined  for  life.  But  it  so  happened 
that  at  the  time  the  balls  were  pawned,  he  was  with  a  lady  and  her  daughters,  who  had  known 
him  for  a  long  tune,  and  to  the  latter  of  whom  he  was  giving  music  lessons,  and  that  he 
went  from  their  house  to  a  picnic  where  he  was  when  the  pawnbroker's  assistant  swore  he 
was  in  the  barber's  shop.  This  was  established  so  clearly  that  the  jury  acquitted  him  with- 
out leaving  the  box.  But  the  man  had  been  arrested,  carried  from  Manchester  to  Oldham 
in  irons,  his  reputation  and  liberty  put  in  jeopardy,  because  two  men  mistook  him  for  an- 
other man." 

One  of  the  most  singular  cases  of  personal  resemblance  was  that  which  was  tried  at  York 
some  years  ago.  Mrs.  Williams  kept  a  public  house  in  that  place,  and  had  in  her  employ  as 
waiter  a  person  by  the  name  of  Thomas  Geddely.  She  was  a  blustering  woman,  and  a  favorite 
with  customers,  and  had  the  reputation  of  being  well-to-do.  One  morning  it  was  found  that 
her  scrutoire  had  been  broken  open,  rifled  of  a  considerable  sum  of  money;  and  as  on  that 
morning  Thomas  Geddely  did  not  make  his  appearance,  everybody  concluded  that  he  was  the 
robber.  A  year  afterward,  or  thereabouts,  a  man  came  to  York  under  the  name  of  James 
Crow,  and  picked  up  a  scanty  living  for  a  few  days  as  porter ;  unluckily,  there  was  a  great 
resemblance  of  Crow  and  Geddely,  and  he  began  to  be  mistaken  for  the  thief.  Many  peo- 
ple addressed  him  as  Thomas  Geddely,  but  be  declared  that  he  did  not  know  them;  that  his 
name  was  James  Crow,  and  that  he  had  never  lived  in  York  before.  He  was  not  believed,  and 
when  arrested  Mrs.  Williams  was  sent  for ;  she  singled  him  out  from  a  number  of  people  and 
called  him  Geddely,  upbraided  him  for  his  ingratitude,  and  charged  him  with  having  robbed 
her .  Upon  his  examination  Crow  affirmed  stoutly  as  any  man  could  that  his  name  was  not 
Geddely ;  that  he  had  never  known  any  person  by  that  namo  ;  that  ha  had  never  lived  hi  York ; 
that  his  name  was  Crow.  Not  being  able  to  get  any  one  t  i^e  to  substantiate  his  affirmations, 
and  being  forced  to  admit  that  he  had  led  a  vagabond  life,  he  was  not  believed ;  and  as  tho 
landlady  of  the  inn  and  several  other  persons  swore  positively  that  he  was  the  identical  Thomas 
Geddely  ;  that  he  was  waiter  when  she  was  robbed;  and  a  servant  girl  deposed  that  she  had 
seen  him  on  the  morning  of  the  robbery  in  the  room  where  the  scrutoire  was  broken  open,  \rith 
a  poker  in  his  hand;  he  was  found  guilty,  condemned  to  death,  and  executed.  He  persisted 
to  his  latest,  breath  hi  affirming  that  he  was  not  Thomas  Geddely,  but  that  he  was  James  Crow. 
The  truth  of  the  poor  fellow's  declaration  was  subsequently  established  to  the  satisfaction  of 
all.  Not  long  after  Crow's  unjust  punishment,  the  real  Thomas  Geddely,  who,  after  tho  rob- 
bery, had  fled  from  York  to  Ireland,  was  apprehended  in  Dublin  for  a  crime  of  the  same  stamp, 
and  there  condemned  and  executed.  After  conviction,  and  before  execution,  he  confessed 
himself  to  be  the  very  Thomas  Geddely  who  had  committed  the  robbery  at  York  for  which  the 
unfortunate  James  Crow  bad  suffered.  A  gentleman,  a  native  of  York,  who  happened  to  be 
in  Dublin  at  the  time  of  Geddely's  execution,  and  who  knew  him  at  the  time  he  lived  with  Mrs. 
Williams,  declared  that  the  resemblance  between  the  men  was  so  remarkable  that  it  was  next 
to  impossible  to  distinguish  their  persons  asunder."  Harris  Before  and  at  Trial,  pp.  387,  388. 

54 


426  THE  LAW  OF  IDENTIFICATION. 

Anna  McCaffrey,  and  on  the  next  day  her  sister,  the  other  daughter, 
Kate  McKeoii,  24-7  Avenue  B,  called,  and  also  identified  the  body. 
On  the  day  of  the  funeral,  Monday  last,  a  number  of  friends  of  the 
late  Mrs.  McCaffrey  looked  at  the  corpse  in  company  with  the  two 
women  named,  and  recognizing  the  features,  bade  it  a  last  adieu. 
The  circumstance  of  the  murder  brought  a  large  concourse  to  the 
funeral,  which  was  quite  imposing.  The  relatives  went  home  after- 
ward to  mourn,  and  the  friends  to  speculate  on  the  shortness  of  life 
and  the  frequency  of  mysterious  murders.  It  was  an  exciting  topic 
and  was  not  exhausted  until  the  next  day,  when,  to  the  astonishment  of 
all,  Mrs.  McCaffrey  walked  into  the  house  where  her  daughters  were, 
and  tartly  inquired  what  they  were  blubbering  about  ?  The  living  Mrs. 
McCaffrey,  it  appears,  was  expected  on  a  visit  from  Providence,  R.  I.r 
to  her  daughters  in  this  city,  about  the  time  they  heard  of  the  body 
awaiting  identification  at  the  morgue,  but  she  delayed  her  visit  a 
few  days,  and  in  the  meantime  her  daughters  gave  decent  burial 
to  a  poor  unfortunate.'"1  He  gives  another  case  which  he  says 
Southey  cut  from  a  journal  of  the  day,  of  a  coroner's  inquest  on  the 
body  of  a  girl  found  drowned,  between  whom  and  another  young 
woman  living  there  was  a  likeness  so  extraordinary,  that  a  number 
of  witnesses,  among  whom  was  the  mother  of  the  latter,  swore 
positively  to  the  body  as  that  of  the  girl  living.  Toward  the  close 
of  the  inquest,  however,  the  girl  so  supposed  to  be  dead,  walked  into 
the  room,  and  said  to  one  of  the  most  positive  witnesses,  "  How 
could  you  make  such  a  mistake  as  to  take  another  body  for  mine  ? " 
The  result  was  there  was  no  evidence  to  show  who  the  deceased  was. 
These  cases,  be  they  true  or  imaginary,  serve  to  illustrate  the  uncer- 
tainty even  of  positive  testimony  as  to  human  identity.* 

1  Ram  on  Facts,  467. 

*Wharton  &  Stille  in  their  Med.  Jur.,  vol.  3,  §  636,  say:  "  Besides  the  general  appearance, 
dress,  manner  and  voice  of  a  person ,  peculiar  marks  upon  the  body  are  a  very  important,  per- 
haps much  the  most  reliable  means  of  identification.  Scars,  burns,  cicatrices,  fractures,  etc., 
upon  some  portion  of  the  body  of  the  prisoner,  distinctly  remembered  by  those  who  have  seen 
them,  will  generally  be  received  as  evidence  of  identity.  Very  often  where  the  scars  resemble 
each  other  they  may  have  been  caused  by  different  agencies.  In  such  cases  the  evidence  of 
physicians  can  bo  brought  to  testify  as  to  the  cause  of  the  wound.  Still  such  evidence  is  not 
always  reliable,  for  a  mark  of  such  a  nature  may  exist  from  exactly  the  same  cause  in  two  dif- 
ferent persons.  It  goes,  however,  a  great  way  in  establishing  identity,  and  is  generally  conclusive, 
ui.less  rebutted  by  stronger  contradictory  evidence."  Diverging  from  this,  the  same  authors 
say,  in  th«  next  section  (637):  "  According  to  BOcker,  the  gender,  age,  size,  stature,  walk,  bear- 
ing, color  of  hair  and  eyes,  shape  of  eyes  and  nose,  appearance  of  teeth,  the  condition  of  the 
hands,  feet,  bones  and  joints  must  be  observed,  together  with  changes  produced  by  pregnancy; 
birth,  miscarriage,  disease,  etc.  Moles  leave  important  evidence,  which  continue  through  life,  un- 
less cut  away,  and  then  a  scar  remains. "  The  same  authors  give  a  case  as  having  occurred  in  New 
York,  some  thirty-five  years  ago.  At  section  641,  it  is  said  :  "  In  1857  the  body  of  a  young 


IDENTITY.  427 

The  Govan  murder  —  mistaken  identity. 

§  621.  We  frequently  tind  cases  of  mistaken  identity  in  which 
the  innocent  party  suffers,  but  we  find  one  English  case  of  the  kind 
in  which  a  guilty  party  went  free.  The  Journal  of  Jurisprudence 

woman,  upon  whom  an  abortion  had  been  produced,  and  who  had  been  murdered  by  a  blow 
upon  the  head,  was  found  in  a  ploughed  field  near  Newburgh,  N.  Y.  The  body  was  supposed 
to  have  been  identified  as  that  of  Miss  Sarah  Bloom,  and  a  man  named  Jenkins,  with  whom 
Miss  Bloom  was  last  seen,  was  arrested,  and  already  a  strong  chain  of  circumstantial  evidence, 
fixing,  it  was  thought,  the  murder  upon  him,  was  made  out.  Jenkins  insisted  that  the  corpse 
was  not  that  of  Miss  Bloom,  and  as  a  matter  of  fact,  after  four  days,  when  the  mysterious 
corpse  had  been  buried,  Miss  Bloom  made  her  appearance  alive  and  well.  The  resemblance 
between  herself  and  the  corpse,  however,  was  remarkable.  'The  body,' so  speaks  a  reporter, 
4  had  a  scar  on  the  left  eyebrow  precisely  where  Sarah  has  one;  the  body  had  a  cut  on  the  main 
finger  of  the  left  hand  precisely  where  Sarah  has  one  of  the  same  character ;  the  body  had  a 
small  black  mole  about  half  way  between  the  ankle  and  the  knee,  on  the  shin  bone,  exactly 
where  Sarah  has  one;  but,  strangest  of  all,  the  body  had  two  toes  of  the  left  foot  grown  to- 
gether, precisely  like  Sarah's,  except  that  Sarah's  are  not  grown  together  so  far  down  on  the 
joint;  the  toes  of  both  feet  of  the  body,  like  Sarah's,  were  pressed  together  from  wearing  tight 
shoes,  and  Sarah  wears  a  coral  ring  on  just  the  finger  from  which  on  the  corpse  a  ring  had 
been  stripped.'  These  facts  connected  with  Sarah's  disappearance,  the  equivocal  story  of 
Jenkins  as  to  where  he  had  left  her,  the  incident  of  her  going  in  a  direction  where  she  did  not 
hear  of  the  discovery  of  the  body,  and  was  not  herself  heard  from  for  four  days,  combined  to 
make  a  case  of  indicatory  evidence  on  which  a  conviction  might  well  have  rested." 

An  important  case  of  mistaken  personal  identity  was  that  of  Bertrande  Be  Rols  v.  Martin 
Guerre,  alias  Arnold  du  Tilh,  given  in  Ram  on  Facts  (4th  ed.),  430,  so  often  referred  to  and 
so  familiar  to  the  legal  profession,  it  need  not  be  given  in  full,  and  especially  when  the  case,  as 
given  by  Mr.  Ram,  covers  so  many  pages,  I  cannot  spare  the  space,  further  than  merely  to  cite 
the  case  as  one  well  worth  the  tune  required  to  read  it.  We  find  many  cases  of  mistaken  iden- 
tity in  our  own  country.  One  deemed  worthy  of  note  is  the  case  of  The  People  v.  Thomas 
Hoag,  alias  dictus  Joseph  Parker,  decided  in  New  York  in  the  year  1801  (City  H.  Rec.  124).  The 
version  of  the  case  as  given  by  Ram  on  Facts,  Appendix,  442,  is  as  follows:  "  The  prisoner  was 
indicted  for  that  whereas  Thomas  Hoag,  late  of  Haverstraw,  in  the  county  of  Rockland,  laborer 
otherwise  called  Joseph  Parker,  now  of  the  city  of  New  York,  cartman,  on  the  8th  of  May,  1797, 
at  the  said  city  of  New  York,  was  lawfully  married  to  Susan  Faesch,  and  the  said  Susan  then  and 
there  had  for  a  wife,  and  that  the  said  Thomas,  alias,  etc.,  afterward,  to-wit,  on  the  25th  day  of 
December,  1800,  at  the  county  of  Rockland,  his  said  wife  being  then  in  full  life,  feloniously  did 
marry,  and  to  wife  did  take,  one  Catharine  Secor,  etc.  To  this  the  prisoner  pleaded  not  guilty. 
Mr.  Ricker,  district  attorney,  prosecuted  on  the  part  of  the  people.  Washington  Morton  and 
Daniel  D.  Tompkins  were  of  counsel  for  the  prisoner.  The  testimony  in  the  cause  was  as  fol- 
lows: The  first  marriage  was  admitted  by  the  counsel  for  the  prisoner  to  be  as  stated  in  the  in- 
dictment, and  that  the  wife  was  still  alive.  On  the  part  of  the  prosecution,  Benjamin  Coe  tes- 
tified that  he  was  one  of  the  judges  of  the  Court  of  Common  Pleas  in  the  county  of  Rockland; 
that  he  well  knew  the  prisoner  at  the  bar;  that  he  came  to  Rockland  at  the  beginning  of  Septem- 
ber, in  the  year  1800,  and  there  passed  by  the  name  of  Thomas  Hoag;  that  there  was  a  person 
with  him  who  passed  for  his  brother;  but  between  those  two  persons  there  was  no  sort  of  resem- 
blance; that  the  prisoner  worked  for  witness  about  a  month,  during  which  time  he  ate  daily 
at  witness'  table,  and  he  of  course  saw  him  daily;  that  on  the  25th  day  of  December,  1800,  wit- 
ness married  the  prisoner  to  one  Catharine  Secor;  that  witness  is  confident  of  the  time,  because 
he  recollected  that  on  that  very  day  one  of  his  own  children  was  christened;  that  during  all  the 
time  the  prisoner  remained  In  Rockland  county,  witness  saw  him  continually;  he  was,  therefore, 
as  much  satisfied  that  the  prisoner  was  Thomas  Hoag,  as  that  he  himself  was  Benjamin  Coe. 
John  Knapp  testified  that  he  knew  the  prisoner  in  1800  and  1801 ;  he  was  then  in  Rockland  county 
and  passed  by  the  name  of  Thomas  Hoag;  that  he  saw  him  constantly  for  five  months,  during 
the  time  the  prisoner  was  at  Rockland ;  that  he  was  at  the  prisoner's  wedding;  that  Hoag  had 
a  scar  under  his  foot;  the  way  that  witness  knew  it  was  that  he  and  Hoag  were  leaping  to- 
gether, and  witness  outleaped  Hoag,  upon  which  the  latter  remarked  that  he  could  not  leap  as 
well  now  as  formerly,  In  consequence  of  a  wound  in  his  foot  by  treading  on  a  drawing  knife;  that 
Hoag  then  pulled  off  his  shoe  and  showed  witness  the  scar  under  his  foot,  occasioned  by  that 
wound;  the  scar  was  very  perceptible.  Witness  was  confident  that  the  prisoner  at  the  bar  was 


428  THE  LAW  OF  IDENTIFICATION. 

gives  it  thus :  "  The  following  case  of  mistaken  identity  arose  out  of 
what  was  known  at  the  Last  Spring  Circuit  at  Glascow,  as '  the  Govan 
murder,'  in  which  an  unfortunate  cabman  lost  his  life.  It  is  so 

Thomas  Hoag.  Catharine  Conklin  (formerly  Catharine  Secor)  testified  that  she  became  ac- 
quainted with  the  prisoner  in  the  beginning  of  September,  1800,  when  he  came  to  Rockland;  he 
then  passed  by  the  name  of  Thomas  Hoag;  that  witness  saw  him  constantly ;  that  prisoner, 
shortly  after  their  acquaintance,  paid  his  addresses  to  her,  and  finally,  on  the  25th  of  December, 
married  her;  that  he  lived  with  her  till  the  latter  end  of  March,  1801,  when  he  left  her;  that  she 
did  not  see  him  again  until  two  years  after;  that  on  the  morning  of  his  leaving  her,  he  appeared 
desirous  of  communicating  something  to  her  of  importance,  but  was  dissuaded  from  it  by  a  per- 
son who  wasVith  him,  and  who  passed  for  his  brother;  that  Hoag,  until  his  departure,  was  a  kind, 
attentive  and  affectionate  husband;  that  she  was  as  well  convinced  as  she  could  possibly  be  of 
any  thing  in  this  world,  that  the  prisoner  at  the  bar  was  the  person  who  married  her  by  the  name 
of  Thomas  Hoag;  that  she  then  thought  him  and  still  thinks  him  the  handsomest  man  she  ever 
saw. 

Here  the  prosecution  rested  the  cause,  and  the  counsel  for  the  defense  called  as  a  witness  for  the 
prisoner,  Joseph  Chadwick,  who  testified  that  he  had  been  acquainted  with  the  prisoner,  Joseph 
Parker,  a  number  of  years;  that  witness  resides  in  this  city,  is  a  rigger  by  trade;  that  prisoner 
worked  in  the  employ  of  the  witness  a  considerable  time  as  a  rigger ;  that  prisoner  began  to  work 
for  witness  in  September,  1799,  and  continued  to  work  for  him  till  the  spring  of  1801;  that  during 
that  period  be  saw  him  constantly;  that  it  appeared  from  witness'  books  that  Parker  received 
money  from  witness  for  work  which  he  had  performed  on  the  following  days,  viz.:  On  the  6th 
of  October  and  6th  and  13th  of  December,  1800;  on  the  9th,  16th  and  28th  of  February,  and  llth 
of  March,  1801;  that  Parker  lived  from  May,  1800,  till  some  time  in  April,  1801,  in  a  house  in  the 
city  of  New  York,  belonging  to  Capt.  Pelor;  that  during  that  period,  and  since,  witness  has  been 
well  acquainted  with  the  prisoner.  Isaac  Ryckman  testified  that  he  was  an  inhabitant  of  the 
city  of  New  York;  that  he  was  well  acquainted  with  Joseph  Parker,  :he  prisoner  at  the  bar, 
and  had  known  him  a  number  of  years;  that  witness  and  Parker  were  jointly  engaged,  in  the 
latter  part  of  the  year  1800,  in  loading  a  vessel  for  Capt.  Tredwell,  of  New  York;  that  they  be- 
gan to  work  on  the  20th  day  of  December,  1800,  and  were  employed  the  greater  part  of  the 
month  of  January,  1801,  in  the  loading  of  the  vessel;  that  during  that  time  the  witness  and  Par- 
ker worked  together  daily;  the  witness  recollected  well  that  they  worked  together  on  the  25th 
day  of  December,  1800;  he  remembered  it,  because  he  never  worked  on  Christmas  day,  before 
or  since;  he  knew  it  was  in  the  year  1800,  because  he  knew  that  Parker  lived,  that  year,  in  a 
house  belonging  to  Capt.  Pelor,  and  he  remembered  their  borrowing  a  screw  for  the  purpose  of 
packing  cotton  into  the  hold  of  the  vessel  they  were  at  work  at,  from  a  Mrs.  Mitchell,  who  lived 
next  door  to  Parker;  that  witness  was  one  of  the  city  watch,  and  that  Parker  was  also  at  that 
time  upon  the  watch;  and  that  witness  had  served  with  him  from  that  time  to  the  present  day, 
upon  the  watch,  and  never  recollected  missing  him  any  time  during  that  period  from  the  city. 
Aspinwall  Cornwall  testified  that  he  lived  in  Rutger  street,  and  had  lived  there  a  number  of 
years;  that  he  kept  a  grocery  store;  that  he  knew  Parker,  the  prisoner  at  the  bar,  in  1800  and 
1801 ;  that  Parker  then  lived  in  Capt.  Pelor's  house:  that  he  lived  only  one  year  in  Fetor's  house; 
that  Parker,  while  he  lived  there,  traded  with  witness;  that  witness  recollected  once  missing 
Parker  for  a  week,  and,  on  inquiring,  found  he  had  been  at  work  on  Staten  Island,  on  board  one 
of  the  United  States  frigates;  that,  excepting  that  time,  he  never  knew  him  to  be  absent  from 
his  family,  but  saw  him  constantly. 

"  Elizabeth  Mitchell  testified  that  she  knew  Parker,  the  prisoner  at  the  bar,  well ;  that  in  the 
years  1800  and  1801,  Parker  lived  in  a  house  adjoining  to  one  in  which  witness  lived;  that  the 
house  Parker  lived  in  belonged  to  Capt.  Pelor;  that  witness  was  in  habits  of  intimacy  with 
Parker's  family,  and  visited  them  constantly  ;  that  Parker  being  one  of  the  city  watch,  she  used 
to  hi>ar  him  rap  with  his  stick  at  the  door,  to  Awaken  his  family  upon  his  return  from  the  watch 
In  the  morning ;  that  she  also  remembered  perfectly  well,  Parker's  borrowing  a  screw  from  her 
on  ChriKtmas  day  in  1800 ;  she  offered  him  some  spirits  to  drink,  but  he  preferred  wine,  which 
she  got  for  him  ;  the  circumstance  of  her  lending  the  screw  to  him  she  was  the  more  positive 
of,  from  recollecting,  also,  that  It  was  broken  by  Parker  in  using  it;  that  Parker  never  lived 
more  than  one  year  in  Capt.  Pelor's  house,  and  from  that  time  to  the  present  day,  witness  had 
been  on  the  same  terms  of  intimacy  with  Parker's  family;  she,  therefore,  considered  It  almost 
impossible  that  Parker  could  have  been  absent  from  town  any  time  without  her  knowing  it ;  and 
•he  never  knew  him  to  be  absent  more  than  one  week  while  he  lived  at  Pelor's  house. 


MISTAKEN  IDENTITY.  429 

remarkable  in  some  respects  that  it  deserves  to  be  chronicled.  At 
the  Glascow  Spring  Circuit,  1877,  three  men  named  Thomas  Farrell, 
Thomas  Hannacher,  and  John  Joyce  were  charged  with  the  murder 
of  Alexander  M'Crae,  cabman,  by  stabbing  him  with  a  knife.  The 

"  James  Redding  testified  that  he  had  lived  in  the  city  a  number  of  years;  that  he  had  known 
Parker,  the  prisoner  at  the  bar,  from  his  infancy ;  that  Parker  was  born  at  Rye,  in  Westchester 
county;  that  Parker,  in  the  year  1800,  lived  in  Captain  Pelors  house;  that  witness  saw  him  then 
continually,  and  never  knew  him  during  that  time  to  be  absent  from  town  during  any  length  of 
time;  that  witness  particularly  remembered  that  sometime  in  the  beginning  of  the  month  of 
January,  1801,  while  Parker  lived  in  Captain  Pelor's  house,  witness  assisted  Parker  in  killing  a 
hog. 

"  Lewis  Osborne  testified  that  he  had  been  acquainted  with  Parker,  the  prisoner  at  the  bar,  for 
the  last  four  years;  that  witness  had  been  one  of  the  city  watch;  that  from  June,  1800,  to  May, 
1801,  Parker  served  upon  the  watch  with  witness ;  that  at  first  Parker  served  as  a  substitute ;  that 
witness  remembered  that  Parker  a  few  days  after  Christmas  in  1800,  was  placed  upon  the  roll  of 
the  regular  watch,  in  place  of  one  Ransom,  who  was  taken  sick ;  witness  was  certain  it  was  hi 
the  period  above  mentioned,  because  that  was  the  only  time  witness  ever  served  upon  the  watch ; 
that  during  the  above  period  witness  and  Parker  were  stationed  together  while  ou  the  watch, 
at  the  same  post.  Witness  was  certain  that  Parker,  the  prisoner  at  the  bar,  was  the  person  with 
whom  he  had  served  upon  the  watch  ;  and  was  confident  that  during  that  time,  Parker  was  never 
absent  from  the  watch  more  than  a  week  at  any  one  time.  The  defendant's  counsel  rested. 

"Moses  Anderson,  on  behalf  of  the  prosecution,  sworn.  I  have  lived  in  Haverstraw,  in  Rock- 
land  county,  since  the  year  1791.  I  know  the  defendant  well.  He  came  to  my  house  in  the  be- 
ginning of  September,  1800.  He  then  passed  by  the  name  of  Thomas  Hoag  ;  worked  for  me 
eight  or  ten  days,  and  from  that  time  until  the  25th  of  December  following,  passed  almost  every 
Sunday  at  my  house.  During  his  stay  hi  our  county  I  saw  him  constantly.  If  he  is  Thomas 
Hoag,  he  has  a  scar  on  his  forehead  which  he  told  me  was  occasioned  by  the  kick  of  a  horse. 
He  had  also  a  small  mark  on  his  neck.  He  had  also  a  scar  under  his  foot,  between  his  heel  and 
the  ball  of  his  foot,  occasioned,  as  he  said,  by  treading  on  a  drawing  knife.  TJiat  scar  is  easy 
to  be  seen.  His  speech  is  remarkable ;  his  voice  is  effeminate  and  he  speaks  quick  and  lisps  a 
little  (all  these  marks  and  peculiarities  were  found  true  on  examination) .  He  supped  at  my 
house  the  night  of  his  marriage  in  December,  1800.  I  have  not  seen  him  until  this  day  since 
he  left  Rockland,  and  this  is  between  three  and  four  years  ago.  I  am  perfectly  satisfied  hi  my 
own  mind  that  he  is  Thomas  Hoag. 

"  Lavinia  Anderson,  sworn.  This  witness  corroborated  the  testimony  of  the  last,  her  husband, 
hi  relation  to  the  identity  of  the  defendant,  Thomas  Hoag.  She  further  testified  that  she  washed 
for  him,  and  there  was  no  mark  on  his  linen ;  and  that  during  his  stay  at  her  husband's  house, 
the  person  who  passed  for  the  defendant's  brother,  having  cut  himself  severely  with  a  scythe, 
complained  much  of  the  pain,  when  Thomas  Hoag  told  him  he  had  been  much  worse  wounded,  and 
showed  the  scar  on  his  foot.  She  also  testified  that  about  a  year  ago,  after  a  suit,  in  which  the 
identity  of  the  defendant's  person  came  in  question,  had  been  brought  in  the  justice's  court  in 
this  city,  she  was  here;  and  having  heard  much  said  on  the  subject,  was  determined  to  see  him 
and  judge  for  herself.  Accordingly  she  went  to  his  house,  but  he  was  not  at  home.  She  then 
went  to  the  place  where  she  was  informed  he  stood  with  his  cart,  that  she  there  saw  him  lying 
on  his  cart  with  his  head  on  his  hand;  that  in  that  situation  she  instantly  knew  him,  that  she 
spoke  to  him,  and  when  he  answered  she  immediately  recognized  his  voice  — that  it  was  very 
singular;  it  was  shrill,  thick,  hurried,  and  something  of  a  lisp;  that  Hoag  had  also  a  habit  of 
shrugging  up  his  shoulders  when  he  spoke;  which  she  also  observed  in  prisoner ;  said  he  had 
been  told  she  was  coming  to  see  him  and  it  was  surprising  people  could  be  so  deceived ;  and  that 
prisoner  asked  if  she  thought  he  was  the  man;  to  which  witness  replied  that  she  thought  he  was, 
but  would  be  more  certain  if  she  looked  at  his  forehead  ;  that  she  accordingly  lifted  up  his  hat 
and  saw  the  scar  upon  his  forehead,  which  she  had  often  before  seen,  and  he  then  told  her  it 
was  occasioned  by  the  kick  of  a  horse.  Witness  added  that  it  was  impossible  she  could  be  mis- 
taken: the  prisoner  is  Thomas  Hoag. 

"Margaret  Secor,  sworn.  About  four  years  ago  I  lived  in  Rockland  with  my  father,  Moses  An- 
derson. The  defendant  Hoag  came  to  our  house  in  September,  1800,  and  remained  in  Rockland 
five  or  six  months.  He  had  a  scar  on  his  forehead.  He  used  to  come  every  Saturday  night  to 
my  father's  house  to  spend  the  Sunday  with  us.  I  used  to  comb  and  tie  his  hair  every  Sunday, 


430  THE  LAW  OF  IDENTIFICATION. 

facts  of  the  case  admit  of  short  narration.  About  nine  o'  clock  on 
the  preceding  New  Year's  eve,  being  a  Sunday,  three  employees  in  the 
dockyards  of  Govan  were  being  driven  home  in  a  cab  from  Renfrew,  a 
distance  of  three  miles.  When  about  half-way,  they  came  upon  two 
men  struggling  together,  and  as  one  of  the  two  was  shouting  for  help 

and  thus  saw  the  scar.  About  two  years  ago  I  married  and  came  immediately  to  this  city  to 
live.  After  I  had  been  here  a  fortnight,  I  was  one  day  standing  at  our  door  when  I  heard  a 
cartman  speaking  to  his  horse,  and  immediately  recognized  the  voice  to  be  that  of  Thomas 
Hoag ;  and  upon  looking  at  him,  saw  the  defendant,  and  instantly  knew  him .  As  he  passed  me 
he  smiled  and  said,  '  How  d'  ye  do,  cousin  ? '  The  next  day  he  came  to  our  house  and  asked  me 
how  I  knew  he  was  the  man  ?  I  replied  that  I  could  tell  better  if  he  would  let  me  look  at  his 
head.  Accordingly  I  looked,  and  saw  a  scar  upon  his  forehead,  which  I  have  often  remarked  on 
that  of  Hoag.  After  I  had  seen  the  defendant  in  the  street,  I  mentioned  it  to  my  husband,  who 
told  the  defendant  of  it,  and  my  husband  brought  him  to  the  house.  I  am  confident  he  is  the 
person  who  passed  at  Rockland  as  Thomas  Hoag. 

"  James  Secor,  sworn.  I  have  been  married  about  two  years  and  a  half,  and  brought  my  wife 
to  town  about  a  week  after  our  marriage.  I  knew  Hoag  in  Rockland,  and  have  repeatedly  seen 
him  there;  and  when  I  saw  him  at  our  house  in  town,  I  thought  him  to  be  the  same  person.  My 
wife  had  remarked  to  me  that  Hoag  had  a  remarkable  scar  on  his  forehead  ;  and  when  he  was 
at  my  house,  I  saw  the  scar  which  she  had  described,  on  his  head. 

"  Nicholas  W.  Conklin,  sworn.  I  live  in  Rocklaud  county  and  know  the  defendant.  His  name 
is  Thomas  Hoag.  I  cannot  be  mistaken  in  the  person.  He  worked  a  considerable  time  for  me; 
and  during  that  time  ate  at  my  table.  He  was  a  stranger,  and  understanding  that  he  was  paying 
his  addresses  to  Catharine  Secor,  I  took  a  good  deal  of  notice  of  him.  I  thought  him  a  clever 
fellow.  He  lived  in  a  house  belonging  to  me.  When  I  saw  him  at  this  place  I  knew  him  in- 
stantly. His  gait,  his  smile,  which  is  very  peculiar,  and  his  very  look  is  that  of  Thomas  Hoag. 
I  have  endeavored,  but  in  vain,  to  find  some  difference  in  appearance  between  the  defendant 
and  Hoag.  I  am  satisfied  in  my  own  mind  that  he  is  the  same  person.  I  think  he  is  about 
twenty-eight  or  thirty  years  old,  and  had  a  small  scar  on  his  neck. 

"  Michael  Burke,  sworn.  I  live  in  Catherine  street,  and  formerly  lived  in  Haverstraw.  I  saw 
the  defendant  there  several  times  before  and  after  his  marriage  in  December,  1800.  I  am  as 
well  satisfied  as  I  can  be  of  any  thing,  that  he  is  the  same  person  I  saw  at  that  place.  About 
two  years  ago,  and  at  the  time  of  the  Harlem  races,  I  met  him  in  the  Bowery,  when  he  spoke 
to  me  and  said:  '  Am  I  not  a  relation  of  yours? '  I  replied  that  I  did  not  know.  He  said,  '  I 
am;  I  married  Caty  Secor.'  On  his  cross-examination,  this  witness  admitted  that  he  had  had  a 
quarrel  with  the  defendant  by  reason  of  having  called  him  Thomas  Hoag;  that  the  above  con- 
versation was  after  the  trial  in  the  justice's  court.  The  witness,  when  first  asked  whether  he 
was  at  that  trial,  said  he  was  not ;  but  when  interrogated  particularly,  whether  he  was  not  in 
the  court-room  at  the  time,  admitted  that  he  was. 

"  Abraham  Wendell,  sworn .  In  the  latter  part  of  the  year  1800, 1  knew  Thomas  Hoag  at  Ha- 
verstraw. I  was  intimate  with  him,  and  knew  him  as  well  as  any  man.  I  have  worked  with  him, 
breakfasted,  dined  and  supped  with  him,  and  often  have  been  at  frolics  with  him.  The  defend- 
ant is  the  same  man.  I  have  no  doubt  whatever  about  it.  About  a  year  ago,  I  was  in  this 
city,  and  was  told  by  some  persons  that  Hoag  had  beaten  the  Haverstraw  folks  in  a  suit, 
wherein  his  identity  was  in  question.  I  told  them  I  could  know  him  with  certainty,  and  they 
said  they  would  send  him  down.  I  was  on  board  my  sloop,  saw  him  one  hundred  yards  off, 
coming  down  street,  and  instantly  knew  him.  He  came  up  to  me  and  said,  '  Mr.  Wendell,  I 
am  told  that  you  will  say  you  know  me.1  I  replied,  'Soldo;  you  are  Thomas  Hoag.'  I  am 
as  confident  he  is  the  person  as  I  am  of  my  own  existence. 

"Sarah  Conklin,  sworn.  I  live  In  Haverstraw.  In  September,  1800,  a  person  calling  himself 
Thomas  Hoag  was  intimate  at  our  house,  and  called  me  aunt.  I  am  sure  the  defendant  is  the 
same  person,  and  never  can  believe  that  two  persons  can  look  so  much  alike.  He  talks,  laughs, 
and  looks  like  Hoag,  whom  I  would  know  among  a  hundred  people  by  his  voice.  The  defend- 
ant 1 1 1 1 ist.  be  Hoag. 

"Gabriel  Conklin,  sworn.  Thomas  Hoag  was  at  my  house  at  Haverstraw  often  in  September, 
1800.  The  defendant  must  be  Thomas  Hoag  ;  he  had  a  scar  on  big  forehead,  and  a  small  scar 
Just  above  his  lip.  (Defendant  had  these  marks.)  The  counsel  for  the  prosecution  again 
roaUxl. 


MISTAKEN  IDENTITY.  431 

and  seemed  to  be  in  danger,  the  cabman  pulled  up  his  horses,  and  two 
of  the  persons  inside  got  out  and  went  to  see  what  was  the  matter. 
Apparently,  however,  resenting  this  interference,  the  two  combatants, 
on  their  approach,  immediately  ceased  their  struggle,  and  turned  to 
attack  the  newcomers.  Seeing  this,  the  latter  immediately  ran  back 
and  got  into  the  cab ;  but  before  the  cabman  could  get  the  door  of 
it  closed,  he  was  stabbed  by  one  of  the  two  assailants,  who  had  now 
come  up.  He  was  able,  however,  to  mount  the  box  and  drive  a 
short  distance  ;  but  just  as  he  was  starting,  one  of  the  two  men  while 
attempting  to  get  at  the  persons  in  the  cab  was  kicked  in  the  left 
cheek  by  one  of  these,  receiving  a  severe  and  distinct  wound.  After 
driving  a  few  hundred  yards,  the  cabman,  feeling  faint,  got  inside 
the  cab ;  and  an  examination  being  made,  a  deep  wound,  caused  by 
a  knife,  was  found  on  his  stomach.  As  by  this  time  the  cab  was 
approaching  Govan,  the  occurrence  was  quickly  made  known  to  a 
large  number  of  people,  who  were  met  upon  the  road ;  and  a  hue  and 
cry  was  at  once  raised.  Thomas  Farrell  was  caught  a  few  minutes 
after  the  affair  was  made  known,  while  running  along  the  streets  of 
Govan,  was  taken  into  the  presence  of  the  cabman  almost  immediately, 
and  was  identified  by  him  as  one  of  the  men  who  had  assaulted  him. 
On  the  following  day  he  was  brought  before  the  three  men  who  had 
been  passengers  in  the  cab,  and  was  likewise  identified  by  all  of 
them,  one  of  them  putting  his  identification  apparently  beyond  dis- 
pute by  pointing  out  that  he  had,  as  jnst  mentioned,  kicked  one  of 
the  assailants  on  the  left  cheek,  leaving  a  mark  ;  and  Farrell  was  seen 

"  James  Juquar,  sworn  on  behalf  of  the  defendant.  I  have  known  Joseph  Parker,  the|defendant, 
seven  years,  and  have  been  intimate  with  him  all  the  time.  We  worked  together  as  riggers  un- 
til he  became  a  cartman.  I  knew  him  when  he  lived  at  Fetor's  house,  and  never  knew  him  ab- 
sent from  the  city  during  that  time  for  a  day,  except  when  working  on  a  frigate,  about  a  week, 
at  Staten  Island.  In  1799,  he  burnt  himself  on  board  the  Adams  frigate,  and  then  went  to  his 
father's  in  Westchester  county,  and  stayed  nearly  a  month.  He  was  very  ill  when  he  left  town. 
I  went  with  him  and  brought  him  back.  He  was  not  quite  recovered.  I  recollect,  perfectly, 
of  Parker  and  others  passing  Christmas  eve  at  my  house  in  the  year  1800,  when  he  lived  at 
Pelor's  house. 

"  Susanna  Wendell,  sworn.  I  have  known  the  defendant  six  years  ;  he  married  my  daughter. 
When  he  lived  in  Pelor's  house,  his  wife  was  ill,  and  I  visited  her  often  and  saw  him  there 
almost  daily.  He  has  never  been  absent  from  the  city  more  than  a  week  since  his  marriage 
except  the  time  when  he  went  to  his  father's  in  Westchester."  It  was  agreed  by  the  respect- 
ive counsel,  that  the  defendant  should  exhibit  his  foot  to  the  jury,  that  they  might  ascertain 
whether  there  was  that  scar  which  had  been  mentioned  by  several  of  the  witnesses  for  the 
prosecution.  Upon  exhibiting  his  foot,  no  mark  or  scar  could  be  seen  upon  either  of  them. 

"Magnus  Beekman,  sworn.  lam  captain  of  the  city  watch  of  the  second  district,  and  am 
well  acquainted  with  the  defendant,  Joseph  Parker.  He  has  been  for  many  years  a  watch- 
man, and  as  such  has  constantly  done  his  duty.  Upon  recurring  to  my  books,  where  I  keep 
a  register  of  the  watchmen,  and  of  their  times  'of  service,  I  find  that  he  was  regularly  on  as 
a  watchman  during  October,  November  and  December,  1800,  and  in  January  and  February, 
1801,  and,  particularly,  he  was  upon  duty  the  26th  of  December,  1800.  The  jury,  without  retir- 
ing, found  a  verdict  of  not  guilty." 


432  THE  LAW  OF  IDENTIFICATION. 

to  have  such  a  mark.  The  police  authorities,  being  upon  this  satisfied 
that  Farrell  was  guilty,  looked  about  for  his  associates  in  the  crime. 
Two  men,  named  Hannacher  and  Joyce,  were  soon  arrested  upon 
suspicion,  and  Hannacher  was  identified  by  the  cabman  before  he 
died,  and  by  the  three  others,  as  having  been  participant.  Joj'ce 
was  not  identified.  In  the  declarations  which  Hannacher  and  Joyce 
separately  made,  they  agreed  in  stating  that  they  had  met  Farrell 
(whom  they  had  not  previously  known)  in  Renfrew,  on  the  Sunday r 
and  had  spent  part  of  the  day  with  him  there,  drinking,  in  an  inn ;  that 
they  had  started  together  to  go  home  to  Govan  where  they  all  resided, 
in  the  evening ;  but  that  Farrell'  had  soon  left  them  and  gone  on 
along  the  public  road  in  front,  and  that  they  themselves  had  ulti- 
mately gone  home  by  a  footpath  through  some  fields,  and  had  not 
seen  the  cab,  and  knew  nothing  of  the  occurrence.  In  addition  to  this 
they  made  certain  other  statements,  as  to  their  having  gone  home  to 
their  lodgings  the  same  night,  etc. ,  which  were  found,  however,  to 
be  quite  false.  Farrell's  statement  in  his  declaration  was  this :  He 
admitted  having  been  in  .Renfrew  during  the  day,  having  met  Han- 
nacher and  Joyce  there,  and  having  been  drinking  with  them  in  an 
inn.  He  further  stated  that  he  had  started  to  walk  to  Govan  with 
them  in  the  evening,  but  that  just  outside  Renfrew  he  had  parted 
company  with  them,  that  he  had  walked  home  alone,  had  met  no 
cab,  and  knew  nothing  of  the  occurrence.  He  accounted  for  the 
cut  on  his  cheek  by  saying  that  shortly  after  leaving  Renfrew,  he 
had,  under  the  influence  of  the  drink  he  had  taken,  fallen  on  the 
road  and  cut  it.  Shortly  after  Farrell's  declaration  had  been  made, 
two  persons  came  forward  and  made  a  statement  that  they  had  been 
walking  from  Govan  to  Renfrew  on  the  evening  of  the  event,  and 
had  met  Farrell  (whom  they  personally  knew)  near  Govan,  and  that 
several  minutes  afterward  they  came  upon  two  men  fighting,  and 
immediately  after  met  a  cab  which  was  approaching  the  combatants 
when  they  passed  it.  This,  it  should  be  noticed,  corroborated  a 

V  f 

statement  made  by  Farrell  in  his  declaration,  that  he  had  met  these 
men.  It  should  also  be  added  that,  so  far  as  the  external  appearances 
went,  the  wound  on  Farrell's  cheek  might  have  been  caused  either  by 
a  kick  or  a  fall.  These  then  were  the  leading  facts  which  the  crown 
prosecutors  had  before  them,  and,  in  preparing  the  case  for  trial,  they 
found  themselves  placed  in  a  difficult  dilemma.  It  was,  in  the  first 
place,  clear  that  the  declarations  made  by  Hannacher  and  Joyce  were 
false,  Hannacher  being  distinctly  identified  ;  and  in  the  second  place 


MISTAKEN  IDENTITY.  433 

that,  as  all  the  evidence  went  distinctly  to  show,  only  two  persons 
were  directly  concerned  in  the  crime.  The  cabman  and  the  men  in 
the  cab  were  certain  that  only  two  persons  were  participants  and 
there  were  here  three  prisoners.  But  naturally  the  crown  authori- 
ties were  quite  satisfied,  looking  to  their  declarations,  and  other 
incidents,  that  Hannacher  and  Joyce  had  been  together  all  the  even- 
ing, and  that  Joyce  if  not  accessory,  at  least,  knew  all  about  the 
affair.  In  these  circumstances,  Farrell  and  Hannacher  being  clearly 
identified  by  all  the  persons  who  were  present,  and  Joyce  not  being 
identified,  it  was  resolved  to  give  Joyce  the  opportunity  of  becoming 
a  witness,  relieving  him  thereby  as  '  Queen's  evidence '  from  all  lia- 
bility to  prosecution.  Joyce  expressing  willingness,  his  recogniz- 
ance was  accordingly  taken,  and  was  to  the  effect  that  Farrell  and 
Hannacher  were  guilty  of  the  deed ;  he  himself  being  close  by  at 
the  time,  but  not  taking  part  in  it.  As  the  day  of  the  trial,  how- 
ever, approached,  Joyce,  on  being  again  carefully  questioned  on  the 
part  of  the  crown,  and  by  the  agent  for  the  defense,  displayed  great 
hesitation  and  confusion  in  replying  to  interrogatories  put  to  him,  and 
became  self-contradictory  in  details.  And  finally,  on  the  day  previ- 
ous to  that  fixed  for  the  trial,  Hannacher  made  a  confession  to  the 
agent  for  the  defense,  to  the  effect  that  Joyce  and  he  were  alone  con- 
cerned in  the  crime,  and  that  Farrell  was  not  present  at  all.  Upon 
this  being  intimated  to  the  crown  prosecutors,  they  were,  reading 
the  evidence  in  a  new  light,  ultimately  forced  to  the  conclusion, 
even  in  the  face  of  all  the  direct  evidence  of  identification,  that 
Joyce  was,  after  all,  the  guilty  party,  and  that  Farrell  was  wholly 
innocent.  And  accordingly  the  case  against  Farrell  was  at  once  with- 
drawn, and  Hannacher,  having  pleaded  guilty  to  culpable  homicide, 
received  a  sentence  of  penal  servitude.  Thus  the  guilty  Joyce  es- 
caped as  '  Queen's  evidence.'  Yet  no  possible  blame  can  be  attached 
to  the  crown  prosecutors  for  the  mistake,  as  the  case,  as  one  of  mis- 
taken identity,  is  most  remarkable.  We  have  Farrell  distinctly 
identified  by  the  dying  cabman  within  an  hour  after  the  occurrence, 
and  on  the  following  day  by  the  three  other  persons  present.  And 
what  especially  seemed  to  place  this  identification  beyond  all  reason- 
able doubt  was  the  fact  that  Farrell  had  a  mark  on  the  left  cheek,  on 
the  very  spot  where  one  of  the  men  had  kicked  his  assailant."1* 
1  12  Irish  Law  Times,  38. 

"The  following  case  of  "  an  innocent  sufferer  "  is  given  by  Mr.  Phillips,  in  his  famous  cases  of 
Circumstantial  Evidence,  vol.  2,  p.  92,  as  follows:  "  About  the  year  1766,  a  young  woman  who 

55 


434:  THE  LAW  OF  IDENTIFICATION. 

Pentonville  prison  case  —  mistaken  identity  of  a  prisoner. 

§  622.  The  Irish  Law  Times  says  the  following  proceedings  have 
been  recently  taken  in  connection  with  the  death,  in  the  Pentonville 
convict  prison,  of  Edwin  Lewis,  who,  by  some  mistake  of  the  police, 
was  arrested  and  sent  to  prison  as  Duval,  a  noted  convict,  who  hav- 

lived  as  servant  of  a  man  of  very  depraved  habits  in  Paris,  having  rejected  certain  dishonorable 
proposals  that  he  made  her,  became  the  object  of  his  revenge.  He  clandestinely  put  into  the 
box  where  she  kept  her  clothes,  several  things  belonging  to  himself  and  marked  with  his  name; 
he  then  declared  that  he  had  been  robbed ;  sent  for  a  constable,  and  made  his  deposition.  The 
box  was  opened,  and  he  claimed  several  articles  as  belonging  to  him.  The  poor  girl  being  im- 
prisoned, had  only  tears  for  her  defense,  and  all  that  she  said  to  the  interrogatories  was  that  she 
was  innocent.  The  judges,  who  in  those  days  seldom  scrutinized  any  case  very  deeply,  pro- 
nounced her  guilty,  and  she  was  condemned  to  hang;  she  was  led  to  the  scaffold,  and  very 
unskillfully  executed,  it  being  the  first  essay  of  the  executioner's  son  in  this  horrid  profession. 
A  surgeon  bought  the  body;  and  as  he  was  preparing  in  the  evening  to  dissect  it,  he  perceived 
some  remaining  warmth;  the  knife  dropped  from  his  hand,  and  he  put  into  bed  the  unfortunate 
woman  he  was  going  to  dissect.  His  endeavors  to  restore  her  to  life  succeeded.  At  the  same 
time  he  sent  for  an  ecclesiastic,  with  whose  discretion  and  experience  he  was  well  acquainted, 
as  well  to  consult  him  on  this  strange  event,  as  to  make  him  witness  of  his  conduct.  When 
the  unfortunate  girl  opened  her  eyes  and  saw  the  figure  of  the  priest  (who  had  features  strongly 
marked)  standing  before  her,  she  thought  herself  in  the  other  world.  She  elapsed  her  hands 
with  terror  and  exclaimed:  'Eternal  Father!  you  know  my  innocence;  have  mercy  on  me  !' 
She  did  not  cease  to  invoke  the  ecclesiastic,  and  it  was  long  before  she  could  be  convinced  that 
she  was  not  dead,  so  strongly  had  the  idea  of  punishment  and  death  impressed  her  imagination. 
The  accuser  was  unexpectedly  confronted  with  his  victim.  Terrified  by  the  sudden  appearance 
of  one  whom  he  believed  dead,  his  courage  failed  him,  and  falling  on  his  knees,  he  confessed 
his  atrocious  crime." 

Another  case  is  given  by  the  same  author,  at  page  16,  of  importance,  though  not  altogether 
germane  to  this  discussion,  and  whether  well  authenticated  or  not,  seems  to  come  within  the 
range  of  probability,  as  follows:  "A  German  violin-maker,  intending  to  return  home,  had 
bought  his  wife  a  silver  coffee-pot,  which  was  left  standing  on  the  table  in  his  chamber.  Some 
one  knocked  at  the  door,  and  two  Jews  entered.  One  bespoke  a  violin  ;  the  other,  while  he 
was  conversing,  snatched  up  the  coffee-pot  and  ran.  The  German  looked  around  and  missed 
the  coffee-pot,  but  the  other  Jew  said  to  him,  'Do  not  be  uneasy,  my  friend;  go  with  me,  and 
I  will  make  my  friend  give  you  back  your  coffee-pot.  It  is  only  some  trick;  he  is  a  mad-headed 
fellow.'  The  poor  German  went  with  the  Jew,  who  brought  him  into  a  chamber  where  were 
four  other  Jews,  and  his  coffee-pot  on  the  table.  He  took  it  and  said,  '  God  be  praised,  I  have 
found  it  once  more.'  The  Jews  answered  not  a  word;  and  the  German  returned  home  with  the 
coffee-pot.  Forthwith  went  the  five  Israelites  to  the  justice,  and  swore  that  the  German  had 
entered  their  chamber  and  stole  thereout  a  silver  coffee-pot.  A  constable  attended  them  to  the 
German's  house.  The  Jew  said:  '  That  is  my  coffee-pot.'  '  Yes,  that  is  yours,'  said  the  others. 
The  German  was  taken  into  custody,  and  being  destitute  of  witnesses,  was  hung  upon  the  evi- 
dence of  the  five  Jews. "  See  Harris  Before  and  at  Trial,  339. 

The  same  author,  in  vol.  2,  p.  127,  gives  a  case  in  Ohio,  thus:  "  Several  years  since  a  man, 
residing  about  seventy  miles  from  Cincinnati,  died  from  the  effects  of  poison,  and  suspicion 
rested  on  a  near  neighbor.  He  was  arrested  and  brought  to  trial.  The  wife  of  the  deceased 
made  positive  oath  that  the  prisoner  at  the  bar  was  at  her  house  previous  to  the  sickness  of  her 
husband,  and  administered  the  poison  In  a  cup  of  coffee,  as  she  had  reason  to  believe, 
also  proven  that  the  prisoner  purchased  poison  in  Cincinnati,  about  that  time,  of  the  descrip- 
tion found  In  the  stomach  of  the  deceased.  In  defense,  the  prisoner  admitted  that  he  pur- 
chased poison,  but  declared  that  he  had  purchased  It  for  the  woman  who  had  sworn  against  him, 
and  who  said,  when  she  sent  for  It,  that  she  wished  to  employ  it  to  exterminate  the  rats;  that 
he  gave  It  into  her  hand  on  his  return,  and  was  utterly  ignorant  of  when  or  how  it  was 
administered  to  her  husband.  This  story,  however,  availed  nothing  with  the  jury.  The  wo- 
man was  a  religious  woman,  and  her  story  was  entitled  to  credit.  He  was  accordingly  con- 
victed and  hung,  protesting  his  innocence  to  the  hour  of  his  death.  A  few  years  passed,  and 
the  guilty  woman  confessed,  not  long  before  her  death,  that  she  was  the  guilty  person,  and  that 
the  man  who  was  executed  knew  nothing  of  the  circumstances  of  the  murder."  See  Harris 
Before  and  at  Trial,  868. 


MISTAKEN  IDENTITY.  435 

ing  been  out  of  prison  as  a  license  holder,  or  ticket-of-leave  man, 
had  broke  the  terms  of  his  license  by  committing  felony.  On  Sat- 
urday, the  30th  of  January,  the  deceased  man,  while  the  worse  for 
liquor,  was  accused  of  having  a  piece  of  meat  in  his  possession,  and 
on  Monday,  the  1st  of  February,  was  placed  before  Mr.  Han  nay  at 
Worship  street  on  the  charge.  Lewis,  to  prevent  his  family  being 
disgraced,  gave  a  false  name,  viz.:  Davis  ;  also  a  false  address.  He 
was  sentenced  by  the  magistrate  to  six  months'  imprisonment,  and 
sent  to  the  county  prison,  Coldbath  fields.  He  was  a  thin,  delicate 
man,  and  while  at  Coldbath  fields,  was  under  the  care  of  the  surgeon, 
at  times  being  in  the  infirmary  or  convalescent  wards.  On  his  re- 
lease at  the  expiration  of  his  term,  he  was  seized  by  the  police  and 
carried  directly  back  to  prison.  While  on  the  way,  in  the  cab,  he  told 
the  two  poh'ce  officers  that  the  constable  had  made  a  mistake,  and 
that  he  was  not  the  man  the  constable  had  sworn  him  to  be.  His 
protests  were  unheeded  and  he  was  handed  over  to  the  authorities  at 
the  prison,  whose  duty  it  was  to  carry  out  the  order  of  the  Home 
office,  which  set  forth  that  he  was  William  Davis,  who  had  been 
convicted  of  burglary  in  1868,  and  sentenced  for  seven  years  and  re- 
leased on  ticket-of-leave  in  1874,  and  had  broken  its  terms,  etc.  Af- 
ter he  was  in  the  hands  of  the  authorities,  he  repeated  his  protest  from 
time  to  time,  that  he  was  not  the  lea ve-of -absence  man  ;  that  the  po- 
lice had  made  a  mistake,  or  sent  him  there  purposely,  and  he  de- 
manded his  liberty.  This  was  of  no  avail  without  an  order  from  the 
Home  office.  And  the  unfortunate  man,  who  was  very  weak  and  ill, 
gave  way  to  despair,  grew  worse,  and  the  officials  in  the  governor's 
office  informed  his  relations  of  his  condition ;  they  visited  him  and 
applied  for  his  release,  but  were  informed  that  they  must  apply  in 
writing,  which  they  did,  and  the  delay  in  the  circumlocution  in  office, 
and  to  get  up  the  facts  in  the  case,  occupied  many  days,  and  in  the 
mean  time  this  innocent  man  died  in  prison,  all  resulting  from  mis- 
taken identity,  and  the  delay  of  justice,  and  it  was  not  a  very  great 
source  of  comfort  to  his  father,  when,  some  time  after  the  death  of 
his  son,  he  received  a  communication  from  the  secretary  of  State, 
regretting  the  circumstance  and  apologizing  for  the  delay.1  (Con- 
densed report.)* 

1  9  Irish  Law  Times,  484. 

*  In  the  revised  edition  of  the  New  York  Medico-Legal  Papers  (third  series)  at  page  367,  in  an 
article  by  James  Appleton  Morgan,  Esq.,  appears  the  following :  "  At  first  this  question  of  per- 
sonal identity  might  seem  to  be  the  simplest  that  could  possibly  come  before  a  court.  But  the  fact 
is  precisely  the  reverse.  Even  in  life,  the  question  whether  a  living  man,  speaking  and  moving, 


436  THE  LAW  OF  IDENTIFICATION. 

Mistaken  identity  —  in  ancient  history. 

§  623.  Pliny,  in  his  Natural  History,  devotes  a  chapter  to  Exempla 
Similitudinum,  in  which  he  gives  many  instances  of  characters  in 
ancient  history,  of  great  resemblance,  and  goes  largely  into  the  im- 
portant question  of  mistaken  identity,  not  only  in  comparatively 
modern  times,  but  among  the  ancients,  and  now  there  is  more  dan- 
ger to  be  apprehended  than  formerly.  If  there  be,  as  often  asserted, 
no  two  individuals  precisely  alike,  yet  the  vast  increase  of  human 
beings  on  earth  must  increase  the  variety,  and  hence,  in  a  corre- 
sponding degree,  increases  the  danger  of  mistaken  identity  and  the 
necessity,  in  criminal  practice,  and  especially  in  cases  of  homicide,  in 
requiring  strict  proof  of  the  corpus  delicti.  Pliny  states  that  it  was 
almost  impossible  to  distinguish  Pompey  the  great,  from  the  plebeian 
Yibias  ;  that  Cneus  Scipio  was  called  "  Seropion,"  from  a  strong 
likeness  he  bore  to  a  slave  of  that  name ;  while  the  consuls  Lentu- 
lus  and  Metullus  were  called  after  certain  actors  to  whom  they  bore 
a  striking  resemblance.  That  a  fisherman  of  Sicily  resembled  the 
pro-consul,  Sura,  not  only  in  features,  but  also  in  possessing  a  pecu- 
liar defect  in  his  speech. 

capable  of  being  watched  and  questioned,  is  one  individual  or  another,  has  proved  itself  over  and 
over  again,  by  far,  instead,  the  most  perplexing.  Cases  of  mistaken  personal  identity  have  been 
all  but  innumerable,  since  the  days  of  Antipholus  of  Syracuse  and  his  twin  brother  Antipholus 
of  Ephesus  and  the  two  Dromios,  their  servants.  '  Cases  of  resemblance  '  we  remember  is  the 
title  of  one  chapter  of  Pliny's  Natural  History,  wherein  the  author  cites  the  instances  of  the  great 
Pompey,  of  whom  personally  the  plebeian  Vibias  was  the  double  and  counterpart;  the  Consuls 
Lentulus  and  Metullus ;  and  the  impostor  Artemon,  the  double  of  Antiochus,  King  of  Syria. 
And  without  referring  to  the  very  recent  Tichborne  trial,  in  which  no  less  than  eighty-five  wit- 
nesses —  under  the  most  rigorous  and  vigorous  cross-examination  that  possibly  the  world  has 
ever  seen  — maintained  positively  that  a  certain  Englishman  was  Sir  Roger  Charles  Doughty 
Tichborne,  a  baronet,  while  a  corresponding  number  were  equally  unshaken  in  their  conviction 
that  he  was  Arthur  Orton,  a  Wapping  butcher.  The  books  are  full  of  puzzles  of  this  nature. 
Jack  Cade,  the  pretended  Mortimer;  Lambert  Simnel,  the  false  Earl  of  Warwick;  Perkin  War- 
beck,  the  sham  Duke  of  York;  the  various  personators of  Don  Sebastian,  the  lost  King  of  Portu- 
gal ;  Jemeljan  PugatscheflT,  the  sham  Peter  III ;  Padre  Ottoman,  the  supposed  heir  of  the  Sultan 
Ibrahim ;  Mahomrned  Bey,  the  counterfeit  Viscount  de  Cigala;  the  case  in  1748,  of  the  false 
Prince  of  Modena;  the  monk  Otreflef,  claiming  to  be  Prince  Dimitri ;  Joseph,  the  pretended 
Count  Solar;  John,  claiming  to  be  the  Earl  of  Crawford  ;  John,  claiming  to  be  Sir  William 
Courtenay  ;  James  Annesley,  calling  himself  Earl  of  Anglesea ;  Hans,  claiming  to  be  Earl  of 
Huntingdon;  Rebok,  the  counterfeit  Voldemar,  Elector  of  Bradenburgh ;  Arnold  Du  Tihl  (or 
Dutille)  the  pretended  Martin  Guerre,  who  successfully  deceived  the  living  wife  so  far  as  to  live 
with  her  three  years,  surrounded  by  four  sisters  and  two  brothers-in-law,  and  beget  two  children 
before  his  discovery,  and  whose  case  came  before  the  Parliament  of  Toulouse  in  1560,  wherein 
forty  witnesses  on  each  side  swore  to  his  personality;  Pierre  Mege,  the  fictitious  DeCaille; 
Michael  Feydy,  the  sham  Claude  de  Verre ;  the  claimants  to  the  Banbury  and  Douglass  Peerages; 
James  Percy,  calling  himself  Earl  of  Northumberland;  Alexander  Humphreys,  the  pretended 
Earl  of  Stirling;  William  George  Howard,  the  false  Earl  of  Wicklow;  the  numerous  so-called 
heirs  of  the  Stuarts;  John  Hatfleld,  claiming  to  be  the  Hon .  Alexander  Hope;  Thomas  Provis, 
calling  himself  Sir  Richard  Smythe;  Lavinia  Jannetta  Horton  Byves,  who  Is  now,  or  was  within 
a  few  months  living  In  England,  calling  herself  Princess  of  Cumberland  ;  Amelia  Radcliffe,  pre- 
tending to  be  Countess  of  Derwentwater."  And  many  other  Instances  are  given. 
In  the  Irish  Law  Times,  vol.  80,  p.  854  (1886),  appears  the  following :  "  No  coroner's  jury 


MISTAKEN  IDENTITY.  437 

Same  —  false  personations  —  ancient  history. 

§  624.  The  same  author  refers  to  tlu's  subject  as  one  which  has 
given  to  governments  and  courts  so  much  trouble.  The  false 
Demetrius  is  one  of  the  notable  figures  in  Roman  history.  Boris,  the 
artful  and  wicked  minister  of  the  Czar  Basiforitz,  upon  the  death  of 
his  sovereign,  assassinated  Demetrius,  the  rightful  heir  to  the  crown, 
and  usurped  the  throne.  A  monk  "  as  like  the  murdered  prince  as 
one  cherry  is  like  another,"  said  a  chronicler,  proclaimed  that  he  was 
Demetrius,  and  that  a  substitute  had  died  from  the  poison  adminis- 
tered by  Boris.  The  mother  and  all  the  most  intimate  friends  of 
Demetrius  were  called  in  and  recognized  him  by  marks  and  pecu- 
liarities which  they  said  conld  not  be  mistaken.  The  revolt  was 
raised,  and  this  monk  was  crowned  czar  of  all  Russians.  A  similar 
imposture  was  perpetrated  by  a  Cossack,  who  successfully  passed 
himself  off  for  the  Emperor  Peter,  whom  he  claimed  had  escaped 
from  the  assassins.  No  less  than  three  persons  were  so  like  the 
Dauphin,  the  son  of  Louis  XYI,  who  died  in  prison  during  the 
reign  of  terror,  that  they  were  induced  to  personate  him,  and  each 
had  many  dupes  and  followers  amongst  the  leading  figures  around 

the  French  throne.1 

1  1  Southern  L.  J.  392. 

has  probably  ever  looked  upon  a  stranger  scene  than  that  which  was  presented  to  the  good 
citizens,  who  the  other  day  assisted  the  investigations  of  Mr.  St.  Clare  Bedford  into  the 
identity  of  a  man  who  was  found  drowned  near  Charing-cross  bridge  last  Monday  evening. 
The  principal  witness  at  the  inquest  was  one  Thomas  Kirby,  a  clerk  in  the  employ  of  Messrs 
Carter  &  Co.,  the  seed  merchants,  who  identified  the  deceased  as  a  fellow  clerk  of  the  name 
of  Wilson,  who  was  engaged  temporarily  from  December  last  to  the  beginning  of  June  for 
the  work  of  packing  samples  and  sending  them  off  by  post  for  advertising  purposes.  Kirby 
recognized  him,  among  other  reasons,  because  of  'a  peculiarity  in  the  finger  of  the  right 
hand1  —  a  mark,  to  the  existence  of  which,  Dr.  Howard,  who  had  examined  the  body,  also 
testified.  To  complete  the  evidence  establishing  the  identity  of  the  deceased,  Inspector 
Hodson,  of  the  Thames  police,  stated  that  a  metal  box,  answering  to  the  description  given 
by  the  witness  Kirby,  was  found  in  the  drowned  man's  pocket.  In  short,  the  theory  that  the 
corpse  was  that  of  Charles  John  Wilson  seemed  to  be  unanswerably  made  out.  There  could 
be  only  one  opposing  fact  which  would  avail  to  overthrow  it;  but  at  this  stage  of  the  inquiry, 
that  fact  presented  itself  in  the  person  of  Charles  John  Wilson,  himself,  who  walked  into  the 
court  with  Inspector  Hodson.  What  effect  he  produced  by  this  dramatic  entrance  — too  dra- 
matic to  need  the  assistance  of  lowered  lights  or  the  ghost  music  from  '  the  Corsican  Brothers 1  — 
the  reporter  reporteth  not;  but  it  must  have  been  more  profound  than  would  appear  from  the 
observations,  self-contained  to  the  point  of  frigidity,  with  which  his  narrative  concludes.  The 
coroner  who  seems  to  have  admirably  retained  his  presence  of  mind,  remarked  that  '  this 
was  a  startling  case  of  mistaken  identity,1  to  which  the  foreman  of  the  jury  added,  that '  many 
a  man  had  been  hanged  on  less  circumstantial  evidence.1  *  *  *  Had  somebody  been  present 
who  was  last  seen  in  Wilson's  company,  and  who  might  have  had  a  conceivable  motive  for  put- 
ting him  out  of  the  way,  and  had  it  occurred  to  Wilson  himself  at  this  juncture  to  take  a  trip  to 
the  Antipodes,  it  is  quite  possible  and  even  likely  that  it  might  have  gone  hard  with  that  some- 
body on  a  prosecution  for  murder.  In  a  former  period  of  our  criminal  jurisprudence  when  evi- 
dence as  to  the  existence  of  what  lawyers  call  the  corpus  delicti  was  less  strictly  insisted  on  than 
it  is  nowadays,  instances  of  persons  being  condemned  and  executed  for  murders  which  had 
never,  in  fact,  been  committed  at  all,  were  by  no  means  unknown." 


438  THE  LAW  OF  IDENTIFICATION. 

Uncle  executed  —  niece  returned  home. 

§  625.  Among  the  many  cases  of  curious  and  singular  facts,  of 
fraud,  deception  and  mistaken  identity,  there  is  a  case  given,  to  the 
effect  that  an  uncle,  who  had  the  bringing  up  of  his  niece,  to  whom 
he  was  heir  at  law,  correcting  her  for  some  offense,  she  was  heard  to 
say :  "  Good  uncle,  do  not  kill  me ! "  After  which  she  could  not  be 
found.  The  uncle  was  committed  on  suspicion  of  having  murdered 
her,  and  was  admonished  by  thejudgeof  the  Assizes  to  find  out  the  child 
by  the  next  Assizes.  Being  unable  to  discover  his  niece,  he  brought 
another  child,  dressed  like  his  niece,  and  resembling  her  in  person 
and  years  ;  but,  on  examination,  the  fraud  was  detected,  and  upon 
the  presumption  of  gnilt  which  these  circumstances  afforded,  he  was 
found  guilty  aud  executed.  The  child  afterward  reappeared,  when 
of  age,  and  claimed  her  land.  On  being  beaten  by  her  uncle,  she 
had  run  away,  and  had  been  received  by  a  stranger.1 

Corpus  delicti  —how  to  be  proved. 

§  626.  As  a  general  rule,  there  can  be  no  conviction  for  murder 
unless  the  corpus  delicti  is  shown ;  i.  0.,  there  can  be  no  murder  un- 
less some  person  is  shown  to  have  been  killed.  And  even  where 
the  father  and  mother  of  a  bastard  child  threw  it  into  the  dock  and 
the  body  was  never  afterward  found,  an  acquittal  was  directed,  be- 
cause the  flow  of  the  tide  might  have  carried  out  the  body  of  the 
living  infant.2  But  there  are  well-recognized  exceptions  to  the  general 
rule,  that  the  body  of  the  deceased  must  have  been  discovered;  notably, 
where  the  murder  has  been  committed  on  the  high  seas,  at  a  great 
distance  from  the  shore,  and  the  body  was  thrown  overboard ;  or 
where  the  body  has  been  entirely  consumed  by  fire,  or  so  that  it  is 
impossible  to  identify  it.3  A  sailor  having  been  seen  to  throw  his 
captain  overboard,  it  was  put  to  the  jury,  on  the  circumstances  of  a 
previous  scuffle  between  them,  a  billet  of  wood  on  the  deck,  and 
stains  of  blood  on  the  deck  and  on  the  prisoner's  clothes,  whether  he 
had  not  killed  the  deceased  before  he  threw  him  overboard  ;  and  so 
the  dead  body  might  be  said  to  have  been  seen  by  the  witnesses 
within  the  rule.* 

Dead  body  —-raised  —  indictment  —  mistake. 

§  627.  Mr.  Beck  gives  a  statement  of  a  singular  and  curious  case 

1  1  Arcbb.  Crim.  Pr.  &  PI.  781.  Cit-        3  People  v.  Wilson,  3  Park.  199. 
ing  Roscoe  Cr.  Ev.  18.  *  1     Arcbb.    Crim.     Pr.    &    PI.   731. 

*1  Arcbb.  Crim.  Pr.  &  PI.  781.  Cit-  Citing  Hindmarsb's  case,  8  Leacb,  671. 
ing  Russ.  Cr.  682. 


MISTAKEN  IDENTITY.  439 

of  the  identification  of  a  dead  body.  It  appeared  that  a  resurrec- 
tion man  was  tried  for  the  raising  of  the  body  of  a  young  woman 
from  the  churchyard  of  Sterling,  nine  weeks  after  death ;  the  body 
was  discovered  and  identified  by  all  the  relations,  not  only  by  the  fea- 
tures, but  by  a  mark  which  they  believed  could  not  be  mistaken, 
she  being  lame  in  the  left  leg,  which  was  shorter  than  the  right. 
There  was  a  good  deal  of  curious  swearing  as  to  the  length  of  time 
after  death  that  the  body  could  be  recognized ;  but  the  jury  was 
convinced  that  the  libel  was  proven,  and  gave  a  verdict  accordingly. 
The  writer  says :  "  Now  I  am  certain  that  this  was  not  the  body  of 
the  woman  who  was  taken  from  the  churchyard  at  Sterling,  but 
one  that,  at  least  six  weeks  after  the  time  libeled,  was  buried  in 
the  churchyard  of  Falkirk,  from  which  she  was  taken  by  this  man, 
who  also  took  the  other,  for  which  he  was  tried.  She  was  also  lame 
of  the  left  leg  ;  thus,  though  guilty  of  the  offense  laid  to  his  charge, 
he  was  found  guilty  by  a  mistake  of  the  corpus  delicti"1  This,  and 
similar  instances  of  mistaken  identity  of  the  dead,  shows  the  utter 
unreliability  of  expert  testimony  in  such  cases.  When  experts  dis- 
agree, we  generally  have,  as  above  stated,  "curious  swearing." 

Taking  dead  bodies  from  the  grave. 

§  628.  At  common  law,  though  it  was  not  larceny  to  take  from 
the  grave  a  dead  body,  as  no  one  had  a  property  therein,  yet  it  is 
an  offense  against  decency  to  take  the  dead  body  with  intent  to  sell 
and  dispose  of  it  for  profit ;  and  such  offense  is  punishable  with  fine 
and  imprisonment  as  a  misdemeanor.  In  England,  in  one  case,  an 
indictment  charged  (inter  alia)  that  the  prisoner,  a  certain  dead 
body  of  a  person  unknown,  lately  before  deceased,  willfully,  unlaw- 
fully and  indecently,  did  take  and  carry  away,  with  intent  to  seU 
and  dispose  of  the  same  for  gain  and  profit ;  and  it  being  evident 
that  the  prisoner  had  taken  the  body  from  some  burial  ground, 
though  from  what  particular  place  was  uncertain,  he  was  found 
guilty  upon  this  count.  And  it  was  considered  that  this  was  so 
clearly  an  indictable  offense  that  no  case  was  reserved.2* 

1  1  Beck  Med.  Jur.  516,  note.  cited  by  Archbold  at  pages  1463,  1464 

3  2  Archb.  Crim.  Pr.,  1463,  note.     Cit-    and  1465. 
ing  Russ.  &  Ry.  365,  366.    And  see  cases 

*  A  singular  case  of  mistaken  identity  occurred  in  Washington  city,  among  the  policemen  of 
the  city,  on  September  7,  1891,  as  reported  in  the  Post  of  the  8th.  "Three  policemen,  a  des- 
perate prisoner,  a  couple  of  hundred  excited  citizens,  and  a  bull  dog  figured  yesterday  after- 
noon in  about  the  liveliest  sensation  South-east  Washington  has  experienced  in  a  long  while. 
The  affair  was  a  badly  complicated  one,  and  the  dog  was  the  only  participant  which  escaped 


440  THE  LAW  OF  IDENTIFICATION. 

without  injury,  while  the  officers  were  badly  used  up,  the  using-up  process  being  administered 
by  the  officers  themselves.  The  whole  affair  was  clearly  a  case  of  mistaken  identity,  but  in 
future  they  will  know  each  other  whether  they  meet  at  a  prayer  meeting  or  a  dog  fight.  John 
Stewart,  a  white  man,  who  has  spent  many  years  of  his  life  in  the  penitentiary  and  jail,  was  the 
cause  of  the  whole  trouble.  He  was  sent  to  the  penitentiary  for  stealing  copper  from  the  navy 
yard,  and  Officer  Bob  Dyer  succeeded  in  making  him  a  boarder  at  the  jail  for  house-breaking. 
His  offenses  have  been  various,  but  after  his  last  confinement  Stewart  promised  to  reform,  and 
began  to  abandon  his  ways.  He  lived  with  his  sister,  Mrs.  Higgs,  on  Virginia  avenue  near 
Eighth  street,  south-east,  and  did  show  a  considerable  disposition  to  reform  ;  but  yesterday 
morning  he  began  drinking,  and  before  the  shades  of  evening  came,  he  was  in  a  mood  to  resent 
any  little  insult.  A  young  boy  named  Jim  Langley  owed  Stewart  five  cents,  and  he  was  asked  to 
pay  it.  Refusing  to  do  so,  Stewart  cuffed  him,  and  some  one  called  '  police.'  Officer  Horton  re- 
sponded, and  after  a  struggle  got  Stewart  to  the  call  box,  but  while  the  policeman  was  turning 
in  the  patrol  call,  the  prisoner  made  a  break  and  escaped.  As  he  ran  down  the  street,  Officer 
Cramer,  who  was  in  citizen's  clothes,  pursued  him,  and  catching  up  with  him,  a  pitched  battle 
ensued,  in  which  the  officer's  bull  dog  took  part,  biting  Stewart  on  the  leg  in  three  places. 
'  Little  Cramer,'  as  he  is  called,  was  not  enough  for  Stewart,  who  knocked  him  down  with  a 
rock  and  kicked  him  unmercifully.  A  crowd  gathered,  but  no  one  offered  to  take  the  officer's 
part  until  Officer  Horton  came  up  and  pulled  Stewart  off.  Officer  Cramer  was  about  played 
out,  but  aided  in  taking  the  prisoner  back  to  the  call  box,  where  another  altercation  took  place. 
Officer  Lightfoot  appeared,  and  he  too  was  in  citizen's  clothes.  Seeing  Officer  Cramer  pulling 
at  the  prisoner,  and  not  knowing  that  he  was  an  officer,  Lightfoot  began  to  pound  him,  thinking 
he  was  doing  his  duty  in  preventing  citizens  from  rescuing  a  prisoner.  Officer  Horton  did  not 
know  Officer  Lightfoot,  and  seeing  him  pounding  Officer  Cramer,  he  began  to  beat  tattoo  over 
Lightfoot's  head  with  his  billy,  cutting  some  deep  and  painful  gashes.  In  the  fight  Officer 
Horton  was  badly  kicked  in  the  breast,  and  it  was  not  until  Sergeant  Mulhall  and  Officer  Bob 
Dyer  came  up  with  the  patrol  wagon  that  the  situation  was  understood  and  explained . 

"  Both  Officers  Cramer  and  Lightfoot  were  badly  injured,  but  when  it  was  understood  how  the 
trouble  came  about,  the  officers  made  apologies,  or  tried  to;  but  all  agreed  that  each  had  sim- 
ply done  what  he  believed  to  be  his  duty.  Stewart  was  locked  up,  and  he  too  has  several  ugly 
wounds  besides  the  dog-bites.  The  pounding  of  the  policemen  by  each  other  gives  rise  to  the 
rumor  that  they  were  drinking,  and  some  of  the  sympathizers  with  Stewart  began  circulating  a 
petition  last  night  asking  for  the  removal  of  the  officers.  Lieutenant  McCotteran  and  Sergeant 
Mulhall  say  the  men  had  not  been  drinking  " 


CHAPTER  XVII. 

MISCELLANEOUS. 

SEC.  SEC. 

629.  Res  adjudicata — judgment  —  iden-    639.  Patent — identity  —  infringement — 

tity  of  parties  and  subject-matter,  rule  in  cases. 

630.  Action  on  contract — then  in  tort —    640.  Same — rule  as  to  the  trial. 

rule  as  to.  641.  Same  —  patent  —  original  and  re- 

631.  Same — early  rule  in  New  York.  issue. 

632.  Same — lien — ship-builder — rule  in    642.  Same —  photographs — camera — in- 

Massachusetts.  vention. 

633.  Promissory  notes — identity  of  con-    643.  Of    money    in    bank  —  equitable 

sideration.  owner. 

634.  Record  —  proof  —  parol  —  general    644.  Patents  —  identification  —  rule  on 

issue.  the  subject. 

635.  Same  —  parol    evidence  —  to  aid    645.  Same  —  to  withdraw  metal  from 

judgment — identification.  smelting  furnace. 

636.  Former  conviction — robbery — bur-    646.  Dying     declarations  —  identity  — 

glary.  name. 

637.  Counterfeiting — former  judgment    647.  Witness — hearing — seeing — color 

— identity.  blindness. 

638.  Liability  for  a  misrepresentation — 

identity. 

Res  adjudicata— judgment — identity  of  parties  and  subject-matter. 
§  629.  The  question  of  identity  is  often  involved  in  actions  of 
various  kinds,  where  the  plea  of  res  adjudicata  is  interposed.  A 
verdict  for  the  same  cause  of  action  between  the  same  parties,  in- 
volving the  same  subject-matter,  is,  as  a  general  rule,  absolutely  con- 
clusive. But  this  rule  is  subject  to  the  qualification  that  there  must 
be  the  identity  of  facts.  It  is  not  sufficient  that  there  is  an  identity 
of  persons  to  the  record,  but  that  the  identity  of  facts  should  have 
been  in  issue  in  a  former  cause ;  for  if  not  in  issue,  it  would  not 
conclude  the  plaintiff.1  The  cause  of  action  is  the  same  when  the 
same  evidence  will  support  both  actions,  although  the  actions  may 
be  founded  on  different  writs  ;  for  instance,  it  has  been  held  that  a 
judgment  in  trespass  would  bar  an  action  of  trover  for  the  same 
taking,  because  the  actions  are  of  the  same  nature. 

Actions  on  contract  —  then  in  tort  —  rule  as  to. 

§  630.  In  questions  of  res  adjudicata,  where  it  becomes  necessary 
to  identify  a  former  judgment  or  a  recovery,  with  that  sought  in 
another  proceeding,  very  nice  questions  of  identity  are  often  pre- 
sented ;  as,  for  instance,  where,  in  a  matter  of  contract,  and  breach 
thereof,  where  a  suit  has  been  brought  on  the  contract,  in  an  action 
1  Ricardo  v.  Garcias,  12  Cl.  &  Fin.  368;  Carter  v.  James,  13  M.  &  W.  137. 
56 


442  THE  LAW  OF  IDENTIFICATION. 

ex  contractu,  and  a  judgment  is  rendered  in  favor  of  the  defendant, 
whether  the  plaintiff  may  subsequently  maintain  an  action  ex  delicto, 
on  the  same  breach  of  such  contract,  to  recover  damages  based  upon 
a  fraudulent  representation ;  and  whether  or  not  the  former  judg- 
ment will  bar  the  latter  action.  This  question  arose  in  Massachu- 
setts in  a  case  decided  in  1859  :  One  Thompson  had  a  contract 
with  defendant  in  the  coaling  business ;  failing  to  carry  out  the 
same,  and  desiring  aid,  he  called  on  plaintiff,  who,  to  ascertain  the 
facts,  applied  to  defendant,  who  informed  him  that  there  was  suffi- 
cient funds  to  pay  Thompson  when  the  contract  was  performed. 
Plaintiff,  relying  upon  this,  took  an  assignment  of  the  contract  from 
Thompson.  The  statement  as  to  the  funds  was  untrue,  as  Thomp- 
son had  been  overpaid  for  the  work  he  had  done.  Plaintiff  sued 
on  the  contract  and  failed ;  then  sued  in  tort  to  recover  on  the  false 
representation  which  induced  him  to  take  the  assignment.  MER- 
KICK,  J.,  said  :  "  It  is  very  plain,  upon  a  comparison  of  the  declara- 
tions and  cause  of  action  set  forth  in  the  former  suit,  the  record  of 
which  the  defendant  produced  and  offered  to  give  in  evidence,  with 
the  allegations,  and  the  allegations  of  cause  of  action  set  forth  in  this, 
that  the  points  or  questions  in  issue  are  not  the  same  in  the  two 
suits,  and  consequently  that  the  judgment  in  the  former  constitutes 
no  bar  to  the  maintenance  of  the  present  action.  It  is  true  that 
both  arose  in  the  same  series  of  transactions,  and  in  the  same  con- 
versations and  communications  which  took  place  between  the  parties 
concerning  them.  But  the  result  of  the  former  suit  shows  that  the 
plaintiff  there  wholly  mistook  the  effect  of  what  was  said  by  de- 
fendant, and  so  failed  to  establish  the  claim  which  he  then  attempted 
to  enforce.  That  was  an  action  of  contract,  in  which  a  promise  and 
a  breach  of  the  promise  were  averred.  This  is  an  action  of  tort,  in 
which  the  plaintiff  alleges  that  he  sustained  damage  by  the  willfully 
fraudulent  representations  of  the  defendant.  Proof  that  would 
fully  support  the  one  would  have  no  tendency  to  maintain  the 
other ;  for  the  reason  that  the  questions  involved  in  the  respective 
issues  are  essentially  unlike.  It  follows,  as  a  necessary  consequence, 
that  the  judgment  in  one  of  them  is  not  competent  evidence  upon 
the  trial  of  the  other,  and  cannot  have  the  effect  of  precluding  the 
plaintiff  from  maintaining  it.  The  ruling  of  the  court  was  to  this  pre- 
cise effect,  and  the  record  of  the  former  suit  was,  therefore,  properly 
excluded  from  being  given  in  evidence  upon  the  trial  of  this.1 
1  Norton  v.  Huxley,  13  Gray,  290. 


MISCELLANEOUS.  443 

Same  —  early  rule  in  New  York. 

§  631.  A  peculiar  case,  involving  a  question  not  dissimilar  to  the 
above,  was  decided  in  New  York  in  1833,  in  which  the  defendant 
offered  to  show  a  former  judgment.  The  action  was  brought  to  re- 
cover damages  for  the  non-delivery  of  a  quantity  of  wheat.  It  was 
held  that  a  verdict  and  judgment,  in  an  action  by  B.  against  A.,  in 
which  the  plaintiff  claimed  to  recover  the  price  of  the  wheat,  alleg- 
ing a  delivery  of  part,  and  a  readiness  to  deliver  the  balance,  was  a 
bar  to  A.'s  right  to  recover,  B.  having  claimed  to  recover  as  well 
for  rye  and  com,  as  for  wheat  sold,  and  it  not  appearing  that  any 
part  of  the  verdict  was  for  the  wheat.  This  was  the  ruling,  although, 
on  the  trial  of  B.'s  suit,  the  recovery  for  the  wheat  was  contested  on 
the  ground  that  the  plaintiff  had  failed  to  perform  his  part  of  the 
contract  in  reference  thereto.  The  judgment  of  a  court  of  com- 
petent jurisdiction,  or  in  the  same  court,  directly  on  the  point,  is,  as 
a  plea,  a  bar,  and  as  evidence  in  certain  cases,  conclusive  as  between 
the  same  parties  upon  the  same  subject-matter.1 

Same  —  lien  —  ship-builder — rule  in  Massachusetts. 

§  632.  A  similar  rule  to  the  above  was  held  in  Massachusetts 
in  1868,  where  a  petition  had  been  filed  against  a  vessel,  to  enforce 
a  lien  for  labor  performed  in  its  construction,  and  the  petition  was, 
upon  an  agreed  state  of  facts,  submitted  to  the  court,  as  being  pre- 
maturely brought.  In  a  subsequent  action,  the  former  decree  was 
set  up  in  bar  to  the  action.  But  the  entry  was  in  general  terms,  and 
no  specific  reasons  were  assigned,  and  the  court  said:  "  We  cannot 
explore  the  mind  of  the  court  to  ascertain  what  the  real  reasons  were. 
It  may,  therefore,  be  left  uncertain  whether  the  former  judgment 
was  against  the  merits  of  the  petitioner's  claim,  or  was  based  on  the 
technical  objection.  To  be  a  bar  to  future  proceedings  it  must  ap- 
pear that  the  former  judgment  necessarily  involved  the  determina- 
tion of  the  same  fact,  to  prove  or  disprove  which  it  is  pleaded  or  in- 
troduced in  evidence.  It  is  not  enough  that  the  question  was  one 
of  the  issues  in  the  former  suit ;  it  must  also  appear  to  have  been 
precisely  determined.9 

Promissory  notes  —  identity  of  consideration. 

§  633.  In  this  connection  it  may,  perhaps,  not  be  out  of  place  to 

1  Lawrence  v.  Hunt,  10  Wend.  80.          Mass.  409.     Citing  Burlen  v.  Shannon, 
s  Foster  v.  The  Richard  Busteed,  100    99  id.  200. 


444  THE  LAW  OF  IDENTIFICATION. 

notice,  that  where  two  promissory  notes  have  been  executed  on  one 
and  the  same  identical  consideration,  and  suit  is  brought  on  one  of 
them,  and  facts  are  put  in  issue  and  tried,  which  are  true,  they  must 
necessarily  have  the  same  effect  upon  one  as  on  the  other;  and  where 
there  is  a  verdict  and  judgment  upon  the  facts  in  issue,  this  judg- 
ment and  record  of  proceedings  may  be  set  up  in  bar  of  an  action 
on  the  other  promissory  note,  and  in  such  case  it  is  only  necessary 
for  the  defendant  to  establish  the  identity  of  notes  and  of  the  con- 
sideration.1 

Record  —  proof —  parol — general  issue. 

§  634:.  A  record  of  a  suit  between  the  same  parties,  involving  the 
same  subject-matter,  which  has  been  put  in  issue  and  tried,  and 
where  it  is  identified  as  the  same  cause  of  action,  is  an  estoppel.2  An 
action  was  brought  to  recover  the  proceeds  of  the  sale  of  a  cargo 
shipped  by  the  plaintiff  to  the  West  Indies  on  board  the  brig 
Active,  of  which  the  defendant  was  master,  and  to  whom  the 
cargo  was  assigned.  STORY,  J.,  said:  "The  defendant  offered  in 
evidence  a  record  of  a  former  suit  between  the  same  parties,  in  which 
judgment  was  rendered  for  the  defendant,  supported  by  parol  proof 
that  the  former  suit  was  for  the  same  cause  of  action  as  the  present. 
The  plaintiff  denied  its  admissibility  under  the  general  issue ;  and 
we  are  of  opinion  that  the  objection  could  be  supported."  Whatever 
the  pleading  may  have  been  in  a  former  suit,  the  identity  of  the 
first  and  second  actions  cannot  be  determined  by  such  pleadings,  but 
by  the  proof  to  be  adduced  in  the  second  action,  as  to  whether  the 
same  matter  was  involved  in  the  former  suit.3 

Same  —  parol  evidence  —  to  aid  judgment  —  identification. 

§  635.  It  seems  to  be  held,  and  with  good  reason  too,  that  the 
identity  of  the  parties  do  not  require  that  suit  should  be  by  and 
against  precisely  the  same  persons  who  had  been  parties  to  the  former 
proceeding ;  that  the  character  of  identity  extends  also  to  their  rep- 
resentatives and  successors,  universal  or  particular,  provided  the 
quality  of  successor  had  been  acquired  subsequent  to  the  judgment 
in  question.  When  a  former  judgment  is  used  by  way  of  estoppel, 
the  plaintiff  may  reply  that  it  did  not  relate  to  the  same  property  or 
transaction  in  controversy  in  the  action  to  which  it  is  set  up  in  bar ; 

1  Treadwell  v.  Stebbins,  6  Bosw.  538.        8  Herman  Estoppel  and  Res  Judicata, 
9  Young  v.  Black,  7  Cranch,  565.  p.  830.     And  see  id.  p.  88. 


MISCELLANEOUS.  445 

and  the  question  of  identity  thus  raised  is  to  be  determined  by  the 
jury  upon  the  evidence  adduced,  like  other  questions  of  fact.1 

Former  conviction  —  robbery  —  burglary. 

§  636.  A  party  in  Georgia  being  indicted  for  robbery,  pleaded  a 
former  conviction  for  the  same  offense  on  an  indictment  for  bur- 
glary, which  defendant  alleged  to  be  the  same  felony  as  that  embraced 
in  the  latter  indictment.  The  State  demurred  to  the  plea  and  the 
trial  court  sustained  the  demurrer.  It  was  held  that  the  plea  of  a 
former  conviction  or  acquittal  is  sufficient  only  whenever  the  proof 
shows  the  second  cause  to  be  the  same  transaction  with  the  first,  and 
a  conviction  of  burglary  is  sufficient  in  an  indictment  for  robbery 
based  on  the  same  offense,  when  the  record  shows  that,  in  order  to 
show  felonious  intent  in  the  former,  circumstances  of  the  stealing 
were  proved,  and  thus  the  same  transaction  —  the  robbery  —  was  in- 
volved in  both  cases.2* 

1  Herman  Estoppel  and  Res  Judicata,  lightly  v.  Jellicoe,  4  T.  R.  147;  Seddon 

S234.    Citing  Packet  Co.  v.  Sickles,  24  v.  Tutop,  6  id.  607;  Smith  v.  Talbot,  11 

ow.  333;   Smith  v.  Johnson,  15  East,  Ark.  666;  Easton  v.  Bratton,  13  Tex.  30; 

213;  Whitternore  v.  Whittemore,  2  N.  Wilcox  v.  Lee,  1  Robt.  (N.  Y.)  355;  Per- 

H.  26;   Parker  v.   Thompson,   3  Pick,  kins   v.    Parker,    10    Allen,   22.     It   is 

429;  Phillips  v.  Berick,  16  Johns.   136;  generally   held  that   parol  evidence  is 

Wheeler   v.  Van   Houten,    12  id.  811;  admissible  to  aid  the  judgment  in  the 

Coleman's  Appeal,  62  Pa.  St.  252;  R.  Co.  identification  of  the  parties  to  the  record, 

v.  Daniel,  20  Qratt.  363;   Spradling  v.  Herman    Estoppel    and    Res   Judicata, 

Conway,  51  Mo.  51;  White  v.  Simonds,  p.  235;  R.  Co.  v.  Yeates,  67  Ala.  164; 

33  Vt.  178;  Badger  v.  Titcomb,  15  Pick.  Tarleton  v.  Johnson,  25  Ala.  300. 
416;  Webster  v.  Lee,  5  Mass.  334;  Go-        2  Roberts  v.  State,  14  Ga.  8. 

*  In  the  case  of  Roberts  v.  State,  14  Ga.  8,  the  jury  found  the  defendant  guilty  on  the  first 
'  account  '  instead  of  'count,1  and  the  court  directed  the  erasure  of  the  first  syllable  to  change 
the  orthography,  and  this  was  held  immaterial .  It  is  said  that  the  same  offense  cannot  be 
divided  or  split  up  and  tried  twice  under  different  heads  or  names,  and  an  acquittal  or  convic- 
tion under  one  charge  is  a  good  bar  to  any  subsequent  indictment  or  prosecution  for  the  same 
offense  under  another  name.  Fisher  v.  Com.,  1  Bush,  211;  Moore  v.  State,  71  Ala.  307;  Com. 
v.  Kinney,  2  Va.  Gas.  139;  Jackson  v.  State,  14  Ind.  327;  Francisco  v.  State,  24  N.  J.  30;  Rex 
v.  Britton,  1  Moo.  &  R.  297;  Holt  v.  State,  38  Oa.  lift;  State  v.  Cameron,  3  Heisk.  78.  A  different 
description  in  the  second  indictment  will  not  constitute  a  different  offense,  and  the  offenses 
may  be  shown  by  parol  to  the  indictment,  notwithstanding  the  record.  Rake  v.  Pope,  7  Ala. 
(N.  S.)  161;  Buhler  v.  State,  64  Ga.  504;  Hirshfleld  v.  State,  11  Tex.  App.  207.  It  would  not  do 
to  permit  the  State,  when  many  articles  are  stolen  at  one  and  the  same  time,  i.  e. ,  in  the  same 
act  of  larceny,  to  find  one  indictment  for  one  article,  and  to  convict  the  defendant  for  that,  and 
then  bring  in  successive  indictments,  one  for  each  of  the  articles,  if  so  the  plea  of  jeopardy 
would  be  of  no  avail  in  such  cases.  Lorton  v.  State,  7  Mo.  55;  Hamilton  v.  State,  36  Ind.  280; 
State  v.  Hennessey,  23  Ohio  St.  339;  Jackson  v.  State,  14  Ind.  327;  Wilson  v.  State,  45  Tex.  76; 
Hoiles  v.  United  States,  3  McArthur,  270;  Fritz  v.  State,  40  Ind.  18;  State  v.  Williams,  10  Humph. 
101.  Where  two  pigs  were  stolen  in  the  same  act,  It  incurred  but  one  liability.  Rex  v.  Britton, 
1  Moo.  &  R.  297.  But  where  two  articles  were  taken,  and  a  half  an  hour  intervened  between 
the  taking  of  the  first  and  the  last,  it  was  held  to  constitute  two  felonies.  Rex  v.  Birdseye,  4 
Carr.  &  P.  386.  Where  the  offenses  are  distinct,  and  not  identical,  two  or  more  indictments, 
one  for  each,  may  be  prosecuted  by  separate  indictments,  and  the  conviction  and  punishment 
for  one  will  be  no  bar  to  the  others.  Teat  v.  State,  53  Miss.  439;  State  v.  Rankin,  4  Cold.  145; 
Com.  v.  Tenney,  97  Mass.  50;  Wemyss  v.  Hopkins,  L.  R.,  10  Q.  B.  378;  Hawkins  v.  State,  1  Port. 
475 ;  State  v.  Taylor,  2  Bailey,  49.  The  same  rule  will  prevail  where  an  assault  and  battery  has 


446  THE  LAW  OF  IDENTIFICATION. 

Counterfeiting  —  former  judgment  —  identity. 

§  637.  In  a  case  decided  by  the  court  of  Massachusetts,  it  appeared 
that  the  defendant  was  indicted  for  having  in  his  possession  counter- 
feit money.  It  was  held  that  the  question  whether  or  not  certain 
words  had  been  erased  from  the  indictment  was  for  the  court,  and 
that  leaving  it  to  the  jury  was  ground  for  an  exception.1  But  in  civil 
practice,  where  a  question  arises  as  the  same  cause  of  action  in  dif- 
ferent suits,  as  where  the  defendant  pleads  a  former  judgment,  and 
the  issue  presented  is,  whether  such  a  former  judgment  has,  in  fact, 
been  rendered ;  this,  though  a  question  of  law,  if  it  is  not  pleaded, 
it  seems,  may  go  in  evidence  to  the  jury  under  the  general  issue.2 
It  was  held  in  Maine,  that  where  a  judgment  was  rendered  against  a 
corporation  by  a  name  variant  from  the  name  in  its  charter,  and  a 
question  arose  in  an  action  against  the  sheriff  for  trespass  in  making 
a  levy,  as  to  whether  the  corporation  was,  in  fact,  a  party  to  the 
judgment,  it  was  a  question  for  the  jury.3 

Liability  for  a  misrepresentation  — identity. 

§  638.  In  an  action  for  false  representation  in  Massachusetts  as  to 
the  pecuniary  liability  or  responsibility  of  the  maker  of  a  promissory 
note,  whereby  the  plaintiff  was  induced  to  take  the  note  for  goods 
sold,  the  bill  of  exceptions  stated  merely  that  the  plaintiff  testified 
as  to  the  representations  made  by  the  defendant  in  regard  to  the 
pecuniary  standing  of  the  maker  of  the  note  and  its  value,  and  that 
he  took  it  upon  the  representations  of  the  defendant ;  but  the  bill 
of  exceptions  did  not  say  that  he  stated  what  those  representations 
were,  but  no  objection  was  made,  that  they  were  mere  expressions 
of  opinion,  or  were  intended  to  be  so  understood.  It  was  held  that 
it  was  to  be  presumed  that  the  defendant's  statements  were  of  facts 
susceptible  of  knowledge,  as  distinguished  from  matters  of  mere 
opinion  and  belief,  and  were  calculated  to  have  materially  influenced 
the  plaintiff.4* 

1  Com.  v.  Davis,  11  Gray,  49.  8  Mfg.  Co.  v.  Butler,  34  Me.  438. 

9  Weathered    v.    Mays,  4  Tex.    389;        4  Safford  v.  Grout,  120  Mass.  20. 
Finley  v.  Hanbest,  30  Pa.  St.  194. 

been  committed  on  several  persons  at  the  same  time.  Crocker  v.  State,  47  Ga.  568;  State  v. 
Nash,  86  N.  C.  650;  State  v.  Damon,  2  Tyler,  387;  State  v.  Standlfer,  5  Port.  523;  State  v.  Parish, 
8  Rich.  322;  Greenwood  v.  State,  64  Ind.  250."  Where  there  were  three  counts  In  an  Indictment, 
and  on  the  trial  the  defendant  was  acquitted  on  two,  and  convicted  on  one  count  only,  and  on 
writ  of  error  a  new  trial  was  granted,  he  could  be  tried  only  on  the  one  count  upon  which  he  had 
been  convicted.  Campbell  v.  State,  9  Yerg.  333.  One  of  the  most  complicated  coses  was 
perhaps  that  of  Teat  v.  State,  63  Miss.  439. 

*  As  to  the  matter  of  liability  for  false  identification,  the  Banking  Law  Journal,  vol.  4, 
p.  169,  says:    "  Bankers  have  long  wanted  more  light  upon  the  question  of  the  liability  of  a 


MISCELLANEOUS.  447 

Patent  —  identity  —  infringement  —  rule  in  cases. 

§  639.  The  identity  of  patented  articles  is,  perhaps,  the  most 
common  question  of  the  kind,  and  generally  arises  in  actions  for 
infringement,  or  injunctions  to  prevent  the  same,  as  in  the  case  of 
the  identity  of  machines  or  instruments.  And  these,  or  models,  or 
drawings  thereof,  are  generally  brought  into  court  for  inspection.  And 
at  law,  where  a  patent  of  a  prior  date  is  offered  in  evidence  as  cover- 
ing the  invention  described  in  the  plaintiff's  patent,  on  a  charge  of 
infringement,  the  question  of  identity  of  the  two  instruments  or 
machines  must  be  left  to  the  jury,  where  there  is  sufficient  resem- 
blance to  raise  the  question  at  all.1  Where  the  specifications  of  an 
improvement  which  has  been  patented,  described  the  pieces  or 
parts  of  mechanism,  their  quality,  manner  of  combination  and 
result,  an  admission  by  the  plaintiff  that  pieces  of  it  were  like  his 
in  general  nature,  and  employed  for  various  purposes,  was  held  not 
to  be  an  admission  that  his  machine  was  the  same  as  others.2 

1  Tucker  v.  SpaldiDg,  13  Wall.  453.  2  Turrill  v.  R.  Co.,  1  Wall.  491. 

party  who  identifies  a  stranger  as  Mr.  so  and  so,  where  the  identification  turns  out  to  be 
false,  and  the  bank  has  suffered  loss.  Such  cases  are  not  infrequent.  Payees  of  drafts  and  other 
instruments  are  often  strangers  at  the  bank  of  payment,  and  call  upon  accommodating  friends, 
known  to  the  bank,  to  identify  them.  Sometimes  the  friend  is  deceived,  and  makes  a  wrong 
statement  of  identity.  If  he  made  such  a  representation,  knowing  its  falsity,  no  question  would 
exist  as  to  his  liability  for  the  injury.  But  where,  without  fraudulent  intent  in  fact,  and  acting 
under  a  mistaken  belief,  he  asserts  that  he  knows  the  party  to  be  of  such  a  name,  and  the  bank, 
itself  ignorant,  acts  on  the  assertion  to  its  injury,  will  the  asserter  be  liable  when  the  statement 
proves  untrue?  The  banking  community  is  at  last  favored  with  a  precedent  on  this  question 
from  the  Supreme  Court  of  Colorado.  A  party  stated  to  a  bank  that  the  holder  of  an  Instru- 
ment was  the  payee  therein  named.  The  bank  thereupon  paid  the  money.  The  statement  turned 
out  to  be  erroneous,  aud  the  bank  was  compelled  to  pay  the  money  over  again  to  the  real  payee. 
It  sued  the  party  making  the  statement.  He  attempted  to  shield  himself  behind  the  general  rule 
that  in  an  action  of  deceit,  a  party  making  a  false  statement  must  be  shown  to  have  had  knowl- 
edge of  its  falsity,  in  order  to  be  held;  and  contended  that,  as  it  was  not  so  shown,  he  was  not 
liable.  The  court,  however,  upholds  the  liability,  saying:  'To  the  general  rule  requiring  a 
party  relying  upon  false  representations  to  show  not  only  that  they  were  false,  but  that  the  party 
making  the  same  knew  such  to  be  the  case,  there  are  some  exceptions ;  as  when  one,  as  in  this 
case,  positively  assures  another  that  a  certain  statement  is  true,  preferring  at  the  time  to  speak 
of  his  own  knowledge,  and  about  a  matter  not  known  to  the  party  to  whom  the  representations 
are  made,  he  cannot  be  allowed  to  complain  because  another  has  placed  too  much  reliance 
upon  the  truth  of  what  he  himself  has  stated.'  In  this  case,  the  bank  was  adjudged  not 
only  entitled  to  recover  the  amount  paid,  but  also  costs  and  counsel  fee  paid  in  unsuccessfully 
defending  a  suit  by  the  real  payee,  of  which  it  had  given  the  party  who  made  the  representa- 
tion notice.  This  decision  should  be  welcomed  by  bankers  as  a  progressive  step  in  the  Hne  of 
increasing  deflniteness  in  the  law  regarding  liability  of  third  persons  for  identifications.  The 
general  principles  which  underlie  the  action  of  deceit  are  now  applied  to  the  particular  case  of 
identity  at  bank,  and  a  party  who  makes  a  positive  statement  as  to  the  identity  of  a  person, 
which  the  bank  relies  on  to  its  injury,  may  be  made  liable,  although  he  may  not  have  known  of 
the  falsity  of  the  statement  when  he  made  it.  Aside  from  the  instruction  which  this  case  affords 
to  bankers,  it  is  useful,  furthermore,  to  those  who  are  called  upon  to  accommodate  customers, 
patrons  or  supposed  friends  by  identifying  them  at  the  bank,  by  showing  them  the  liability  in- 
curred in  making  positive  statements  of  identity  which  turn  out  erroneous,  and  thus  teaching 
the  necessity  for  the  exercise  of  care  and  caution  before  making  such  statements." 


448  THE  LAW  OF  IDENTIFICATION. 

Same  —  rule  as  to  the  trial. 

§  640.  It  has  been  held  that  a  court  of  equity  has  the  discretion- 
ary power  to  send  to  the  jury  the  question  whether  or  not  a  reissued 
patent  was  for  the  same  invention  as  the  original  patent.1  But  in 
England,  it  seems  to  have  been  held  that,  in  an  action  for  an  alleged 
infringement  of  a  patent,  where  the  defense  is  that  the  supposed  in- 
vention is  not  new,  the  judge  may  compare  the  plaintiff's  specification 
with  the  specification  of  a  previous  patent,  and  may,  on  such  com- 
parison, direct  the  jury  to  find  a  verdict  in  the  case.2  The  rale  that 
where  the  defendant  omits  entirely  one  of  the  ingredients  of  plain- 
tiff's combination,  and  substitutes  no  other,  he  does  not  infringe  ;  and 
if  he  substitutes  another  in  place  of  the  one  omitted,  which  is  new, 
or  which  performs  a  substantially  different  function,  or  even  if  it  is 
old,  but  unknown  at  the  date  of  plaintiff's  patent,  he  does  not 
thereby  infringe.3 

Same  —  patent  —  original  and.  reissue. 

§  641.  The  question  of  identity  often  arises  in  patent  cases,  of  orig- 
inal and  reissue  of  patents.  Where,  upon  comparison  of  the  original 
letters -patent  of  a  turning  machine  and  its  reissue,  it  was  apparent 
that  the  invention  had  been  originally  for  the  turning  of  logs  on  their 
own  axes  on  a  log-carriage,  and  the  reissued  patent  to  the  same  pat- 
entee had  been  so  extended  as  to  embrace  the  rolling  of  logs  from 
place  to  place  on  the  log-deck,  or  from  the  log-deck  upon  the  car- 
riage, and  in  so  doing  required  the  omission  of  parts  essential  in  turn- 
ing logs  on  their  axes  when  upon  the  carriage,  it  was  held  that 
this  involved,  not  only  a  change  of  purpose,  of  location  of  parts,  of 
the  manner  of  operation,  but  of  effect  produced,  and  this  involved  a 
change  of  mechanism,  and,  therefore,  the  reissue  covered  a  different 
invention  from  that  described  in  the  original  patent,  and  the  first 
claim  based  upon  such  change  was  void.4 

Same  —  photographs  —  camera  —  invention. 

§  642.  An  action  in  equity  was  brought  to  restrain  the  infringe- 
ment of  reissued  letters- patent  granted  to  Southworth  for  certain  im- 
provements in  photographic  impressions.  The  answer  denied  the 
novelty  and  utility  of  the  invention,  denied  infringement,  and  al- 
leged that  the  invention  described  in  the  reissued  patent  was  not 

1  Poppenhusen  v.  Falke,  4  Blatchf.  3  Gill  v.  Wells,  22  Wall.  1-32. 

C.  C.  493.  4  Torrent,  etc.,  Lumber  Co.    v.  Rod- 

'  Bush  v.  Fox,  38  Eng.  L.  &  Eq.  1.         gers,  112  U.  8.  659. 


MISCELLANEOUS.  -M9 

identical  with  the  original  patent.  The  court  dismissed  the  bill,  and 
complainants  appealed.  The  camera  is  a  rectangular,  oblong  box,  in 
one  end  of  which  is  inserted  a  tube  containing  a  double  convex  lens, 
while  at  the  other  end  is  a  plate-holder,  immediately  in  front  of 
which  is  a  sliding  shield.  The  patent  claimed  was  for  the  plate-hol- 
der in  combination  with  the  frame  in  which  it  moves,  constructed  and 
operating  in  the  manner  and  for  the  purpose  set  forth.  It  was  con- 
strued to  be  for  a  mechanism  to  accomplish  a  specific  result,  and  the 
claim  in  the  reissue  for  the  bringing  of  the  different  portions  of  a 
single  plate,  or  several  smaller  plates,  successively  into  the  field  of 
the  lens  of  the  camera,  substantially  in  the  manner  and  for  the  pur- 
poses specified,  was  construed  to  be  for  a  process.  It  was  held  that 
the  reissue  was  void,  being  broader  than  the  original.1  The  identity 
of  patents  opens  up  a  field  too  broad  for  this  volume.  The  reader 
may  refer  to  Brodix's  American  and  English  Patent  Cases,  now  in 
course  of  publication.* 

Of  money  in  bank  —  equitable  owner. 

§  643.  In  an  attachment  case,  in  Pennsylvania,  it  appeared  that 
one  John  H.  Curtis,  a  real  estate  broker,  deposited  in  bank,  money 
belonging  to  his  clients  or  principals;  $835.81  belonged  to  the  Phila- 
delphia Saving  Fund  Association  and  to  the  trustees  of  the  Patterel 
1  Wing  v.  Anthony,  106  U.  S.  143;  27  L.  Ed.  110. 

*  In  a  note  to  Blunt  v.  Patten,  2  Paine,  402,  which  was  an  action  for  the  infringen-ent  of  a  copy- 
right, Lord  MANSFIELD  is  reported  as  having,  in  a  similar  case,  in  charging  the  jury,  said:  "  The 
rule  of  decision  in  this  case  is  a  matter  of  great  consequence  to  the  country.  In  deciding  it  we 
must  take  care  to  guard  against  two  extremes,  equally  prejudicial;  the  one,  that  men  of  abil- 
ity, who  have  employed  their  time  for  the  service  of  the  community,  may  not  be  deprived  of 
their  just  merits,  and  the  reward  of  their  ingenuity  and  labor;  the  other,  that  the  world  may  not 
be  deprived  of  improvements,  nor  the  progress  of  the  arts  be  retarded.  The  act  that  secures 
copyright  to  authors, guards  against  the  piracy  of  the  words  and  sentiments;  but  it  does  not  pro- 
hibit writing  on  the  same  subject,  as  in  the  case  of  histories  and  dictionaries.  In  the  first,  a  man 
may  give  a  relation  of  the  same  facts  and  in  the  same  order  of  time ;  in  the  latter,  an  interpre- 
tation is  given  of  the  identical  same  words.  In  all  these  cases,  the  question  of  fact  to  come  be- 
fore a  jury  is,  whether  the  alteration  be  colorable  or  not;  there  must  be  such  a  similitude  as  to 
make  it  probable  and  reasonable  to  suppose  that  one  is  a  transcript  of  the  other,  and  nothing 
more  than  a  transcript.  So  in  the  case  of  prints,  no  doubt  different  men  may  take  engravings 
from  the  same  pictures.  The  same  principle  holds  with  regard  to  charts.  Whoever  has  it  in  his 
intention  to  publish  a  chart  may  take  advantage  of  all  prior  publications.  There  is  no  monopoly 
of  the  subject  here,  any  more  than  in  the  other  instances;  but  upon  any  question  of  this  nature, 
the  jury  will  decide  whether  it  be  a  servile  imitation  or  not.  K  an  erroneous  chart  be  made, 
God  forbid  it  should  not  be  corrected  even  in  a  small  degree,  if  it  thereby  becomes  more  service- 
able and  useful  for  the  purposes  to  which  it  is  applied.  But  here  you  are  told  that  there  are 
various  and  very  material  alterations.  This  chart  of  the  plaintiffs'  is  upon  a  wrong  principle, 
inapplicable  to  navigation.  The  defendant,  therefore,  has  been  correcting  errors,  and  not 
servilely  copying.  If  you  think  so,  you  will  find  for  the  defendant.  If  you  think  it  is  a  mere 
servile  imitation,  and  printed  from  the  other,  you  will  find  for  the  plaintiffs."  (There  was  a 
verdict  for  the  defendant.) 

57 


450  THE  LAW  OF  IDENTIFICATION. 

estate.  Curtis  died  and  the  business  was  continued  by  his  son,  the 
former  partner.  Curtis  had,  before  his  death,  deposited  his  own 
funds  in  a  different  bank.  The  attaching  creditors  garnished  the 
bank,  and  the  bank  was  at  once  notified  that  the  money  belonged 
to  the  principals  above  named,  and  though  deposited  in  the  name  of 
John  H.  Curtis  &  Son,  the  court  said  :  "  Their  right  to  it  was  not 
lost  because  so  deposited.  It  is  undeniable  that  equity  will  follow  a 
fund  through  any  number  of  transmutations  and  preserve  it  for  the 
owner,  so  long  as  it  can  be  identified,  and  it  does  not  matter  in  whose 
name  the  legal  right  stands.  If  money  has  been  converted  by  a 
trustee,  or  agent,  into  a  chose  in  action,  the  legal  right  to  it  may  have 
been  changed,  but  equity  regards  the  beneficial  ownership.  *  *  * 
The  attaching  creditor  stands  in  the  position  of  the  depositor  and 
can  recover  only  what  the  depositor  could."1*  The  identity  of  land ' 
may  be  proved,  as  a  general  rule,  like  the  identity  of  personalty. 
Often  in  the  case  of  disputed  boundary  lines,  it  becomes  necessary 
to  identify  it  by  actual  survey.  And  if  one  acting  in  a  fiduciary 
capacity,  invest  the  trust  fund  in  real  property,  and  takes  the  deed 
to  himself,  the  beneficial  owner  of  the  fund  must  identify  not  only 
the  fund,  but  also  the  property,  by  tracing  it  into  property  ;  which 
may  be  done  in  equity,  through  any  number  of  transmutations. 
1  Farmers',  etc.,  Bank  v.  King,  57  Pa.  St.  202. 

*  Mr.  Burrill,  in  his  Circumstantial  Evidence,  p.  140,  gives  what  seems  worthy  of  note. 
Speaking  of  the  destruction  of  evidence  of  a  murder,  he  says:  "The  remains  of  a  poisonous 
liquid,  for  instance,  are  got  rid  of,  under  Che  pretense  of  being  a  nauseous  mixture,  offensive 
to  the  sense,  and,  therefore,  requiring  removal.  Donellan's  case  may  be  here  again  referred  to, 
for  some  very  instructive  facts.  The  deceased  had  become  suddenly  and  violently  ill,  after 
taking  a  harmless  draught  prescribed  by  a  physician,  for  a  trifling  ailment,  and  in  a  few  minutes 
died.  There  being  great  reason  to  suspect  poison,  it  was  of  course  of  the  utmost  importance  to 
any  satisfactory  conclusion  on  the  point,  that  the  remains  of  the  draught  and  the  phials  con- 
taining  it  should  be  preserved  undisturbed,  until  an  examination  of  them  could  be  made  by 
competent  persons.  This  was  effectually  prevented  by  the  obtrusive  and  determined  conduct 
of  the  prisoner,  as  the  following  statement  may  illustrate.  On  coming  into  the  room  where  the 
deceased  lay,  and  being  told  what  had  happened,  he  inquired  for  the  physic-bottle;  and  on  its  be- 
ing pointed  out  to  him  by  the  mother  of  the  deceased,  he  poured  some  water  out  of  the  water- 
bottle,  which  was  near,  into  the  phial,  shook  it  and  then  emptied  it  into  some  dirty  water,  which 
was  in  a  wash-hand-basin.  Upon  this  the  mother  of  the  deceased  remarked,  '  You  should  not 
meddle  with  the  bottle'  Upon  which  the  prisoner  snatched  up  another  bottle  which  stood 
near,  poured  water  into  that  also,  shook  it,  and  then  put  his  finger  to  It  and  tasted  it.  The 
mother  of  deceased  asked  again  what  he  was  about,  and  said  he  ought  not  to  meddle  with  the 
bottles;  on  which  he  replied  that  he  did  it  to  taste  it,  though  he  had  not  tasted  the  first  bottle. 
Not  content  with  this  degree  of  interference,  the  prisoner  next  ordered  the  servant  to  take  away 
the  basin  and  the  bottles,  and  put  the  bottles  into  her  hands  for  that  purpose.  She  put  them 
down  again,  on  being  directed  by  the  mother  of  the  deceased  to  do  so;  but  subsequently  re- 
moved them  on  the  peremptory  order  of  the  prisoner.  Here  was  grossly  obtrusive  conduct, 
persisted  in,  In  spite  of  repeated  remonstrances;  and  its  effect  was  to  remove  every  vestige  of 
any  poisonous  ingredient  which  the  phials  might  have  contained."  Citing  Rex  v.  Donellan, 
Gurney'H  Rep.  (1781.) 


MISCELLANEOUS  451 

Patents  —  identification  of— rule  on  the  subject. 

§  644.  In  an  action  at  law  for  the  infringement  of  a  patent,  it 
seems  to  be  a  question  for  the  jury  to  determine,  and  necessarily  so 
because  it  is  a  question  of  fact,  a  question  for  the  jury  upon  the 
subject  of  identity.  Where  a  patent  was  taken  out  for  a  new  and 
useful  improvement  in  the  machine  for  breaking  and  screening  coal, 
and  the  claim  was  for  the  manner  in  which  the  party  had  arranged 
and  combined  with  each  other  the  breaking  rollers  and  the  screen, 
and  the  amended  specification  of  the  reissued  patent  described 
essentially  the  same  machine  as  the  former  one  did,  but  claimed  as 
the  thing  invented,  the  breaking  apparatus  only,  a  dedication  to  the 
public  did  not  accrue  in  the  interval  between  the  one  patent  and  the 
other.  The  jury  should  determine,  from  the  evidence  in  the  case, 
whether  the  specifications,  including  the  claim  upon  which  the  patent 
was  granted  to  the  party,  were  sufficient  in  their  precision  to  enable 
experts  in  machinery  to  make  the  one  described,  and  whether  there 
was  a  patentable  novelty,  and  whether  the  renewed  patent  was  for 
the  same  invention  as  the  original  patent,  and  whether  it  had  been 
abandoned  to  the  public,  as  well  as  the  identity  of  that  used  by  the 
defendant,  or  whether  they  had  been  invented  to  operate  upon  the 
same  principle.1 

Same —  to  withdraw  metal  from  smelting  furnace. 

§  645.  A  more  recent  case  was  decided  by  the  United  States  Su- 
preme Court,  in  1886,  in  which  an  action  was  brought  at  law  to  re- 
cover damages  for  the  infringement  of  a  patent  for  an  improved 
method  of  tapping  and  withdrawing  bad  and  other  metals,  when  in 
a  molten  state,  from  the  bottom  of  a  smelting  furnace.  It  was  held 
that  when  the  defendant  in  a  suit  for  the  infringement  of  a  patent 
sets  up  a  prior  publication  of  a  machine  anticipating  the  patented  in- 
vention, and  it  appears  that  there  are  obvious  differences  between 
the  two  machines  in  the  arrangement  of  the  separate  parts,  in  rela- 
tion of  the  parts  to  each  other,  and  in  their  connection  with  each 
other  in  performing  the  functions  for  which  the  machine  is  intended, 
and  experts  differ  upon  the  question  whether  those  differences  are 
material  to  the  result,  and  whether  they  require  the  faculty  of  in- 
vention, those  are  all  questions  of  fact  and  should  be  left  to  the  de- 
termination of  the  jury,  properly  instructed  by  the  court  as  to  the 
law  applicable  to  the  facts  in  the  case.  And  so  in  all  questions  in- 
volving identification.2 

1  Battin  v.  Taggert,  17  How.  (U.  S.)  77.        2  Keyes  v.  Grant,  118  U.  S.  25. 


452  THE  LAW  OF  IDENTIFICATION. 

Dying  declarations  —  identity  —  name. 

§  646.  One  Cooper  in  Massachusetts  was  indicted,  tried  and  con- 
victed for  the  killing  of  Phebe  Fuller  by  striking  her  on  the  head 
with  an  instrument  called  a  "  fid."  It  was  held  that  where  dying 
declarations  had  been  admitted  to  prove  the  identity  of  the  accused 
as  the  perpetrator  of  the  crime,  it  was  competent  to  receive  evidence 
in  reply  to  show  that  the  deceased  had  met  and  talked  with  persons 
with  whom  she  was  well  acquainted,  mistaking  them  at  the  time  for 
other  persons  whom  they  did  not  resemble,  and  was  in  the  habit  of 
thus  mistaking  persons.1 

In  Nebraska,  on  a  trial  for  murder,  it  was  held  that  the  name 
a  man  "  always  went  by,"  which  he  declares  is  his  name,  in  his  dy- 
ing declaration,  and  by  which  his  own  mother  knew  him,  may  be 
deemed  his  right  name,  although  one  witness  has  testified  that  it  was 
not  his  right  name.9 

Witness  —  hearing  —  suing  —  color-blindness. 

§  647.  It  is  certainly  clear  to  every  thinking  man  that  the  value 
and  weight  of  the  testimony  of  a  witness  must  ever  depend  upon 
the  knowledge  he  has  acquired  upon  the  matter  of  which  he  speaks, 
from  whatever  source  acquired,  and  whether  it  be  stated  as  a  matter 
of  fact  or  mere  opinion.  And  the  court  or  jury  have  a  right  to  know 
his  means  of  information  and  his  reason  for  making  the  statement. 
Not  only  is  this  true,  but  it  is  proper  to  inquire  into  the  strength 
of  his  intellect  and  the  retentiveness  of  his  memory ;  and  more  im- 
portant, especially  in  questions  of  identification,  is  the  power  of  his 
perception  and  discrimination,  as  these  questions  often  depend  upon 
circumstances  and  opinion  testimony,  and,  not  unfrequently,  experts 
Persons  receive  information  only  through  the  five  senses  —  hearing, 
seeing,  tasting,  smelling  and  feeling  (the  sense  of  touch,  not  a  feel- 
ing of  consciousness).  Of  these,  the  two  former  (hearing  and  seeing) 
are  far  the  most  important.  In  questions  of  personal  identity,  we 
find  cases  where  persons  have  been  identified  by  their  voice ;  for  this, 
the  witness  depends  upon  his  sense  of  hearing.  This  is  rendered 
doubly  uncertain  \first,  the  voice  he  hears  may  be  bold  and  harsh,  reg- 
ular and  distinct,  mild,  soft,  or  faint,  or  wholly  disguised ;  second, 
the  witness'  hearing  may  be  defective,  or  it  may  be  deceptive.  Many 
persons,  from  want  of  attention  or  appreciation,  cannot  discriminate 
between  sounds,  or,  at  least,  have  not  a  quick  perception  of  them, 

1  Com.  v.  Cooper,  5  Allen,  495.  *  Binfield  v.  State,  15  Neb.  484. 


MISCELLANEOUS.  453 

and  can  never  make  musicians  or  appreciate  music,  for  the  want  of 
power  to  discriminate  between  a  sound,  a  noise  and  a  racket;  or  in 
accent,  to  perceive  the  difference  between  a  trochee  and  an  iambus. 
Seeing. —  The  sense  of  seeing  may  be  imperfect,  or  the  object  we  see 
deceptive.  Personal  identity  is  most  generally  determined  by  the 
sense  of  seeing ;  and  that  is  often  unreliable.  We  want  no  better  proof 
of  this  than  is  found  in  the  chapter  of  "  Mistaken  Identity."  A  per- 
son is  often  identified,  in  part  at  least,  by  the  color  of  his  hair,  beard, 
eyes  and  complexion.  This  involves  a  discrimination  between  colors  ; 
and  is  rendered  all  the  more  uncertain  when  we  see  science  demon- 
strating the  fact  that  many  persons  are  color-blind ;  and  this  is  be- 
coming now  an  important  question,  especially  as  it  relates  to  naviga- 
tion and  railroad  commerce,  where  it  is  the  duty  of  those  engaged 
to  observe  the  signal  lights  of  the  different  colors,  where  the  color- 
blind are  wholly  incompetent.  And  this  may  have  caused  many  ac- 
cidents, disasters,  and  loss  of  life  and  property.* 

.  *  Color  blindness. —  The  only  books  the  writer  has  had  access  to  upon  this  subject,  which  is 
now  exciting  some  interest  among  scientists,  is  a  work  on  the  theory  of  color  and  its  relation  to 
art,  and  art  industry*  by  Wilhelm  Von  Bezold  of  Germany,  translated  by  Koehler,  with  notes 
by  Edward  C.  Pickering,  published  in  Boston  in  1876,  and  another  work  by  Dr.  B.  Joy  Jeffries, 
entitled ' '  Color  Blindness,  its  Dangers  and  Detection, ' '  published  in  Boston  in  1879,  though  the  sub- 
ject  had  received  some  attention  in  other  countries  a  few  years  earlier.  The  writer  has  taken  a 
few  brief  extracts  from  the  latter,  for  the  mere  purpose  of  showing  some  of  the  danger  so  our 
commerce,  and  as  they  have  been  discovered  by  scientific  tests  and  demonstrated  by  actual  ex- 
amination, and  the  percentage  of  persons  color-blind,  and  especially  those  employed  as  sailors 
and  on  railroads  whose  duties  require  them  to  observe  signals  of  different  colors.  While  it  may 
be  said  that  the  proportion  is  not  very  great,  the  danger  of  disaster  from  this  cause  is  in  propor- 
tion to  the  number  of  persons  having  this  defect.  Riots  and  other  officers  on  the  seas,  rivers, 
lakes,  and  railroad  engineers  and  other  officers  and  employees  whose  duty  it  is  to  know  all  the  sig- 
nals by  day  and  by  night  are  clearly  incompetent  to  fill  such  important  stations  if  they  cannot 
distinguish  the  colors  of  the  different  signals  displayed  as  guides  and  warnings.  If  the  collisions 
and  disasters  resulting  from  this  cause  be  even  few,  yet  if  there  be  any  danger,  it  should  be 
promptly  avoided,  and  there  is,  perhaps,  but  one  remedy,  and  that  is  for  every  person  to  undergo 
a  thorough  examination,  testing  his  competency  in  this  respect.  Now,  in  the  light  of  these 
scientific  discoveries,  if  owners  of  vessels,  or  our  railroad  companies  employ  officers  or  servants 
thus  incompetent,  and  disaster  results  therefrom,  the  owners  or  masters  should  be  held  to  a 
strict  liability,  as  for  a  culpable  negligence.  If  they  be  ignorant  of  such  unfltness,  which  they 
might  have  known,  their  ignorance  of  the  fact  is  negligence. 

Dr.  Jeffries,  on  this  point  (p.  158),  says:  "  There  is  another  peculiar  danger  on  railroads.  A 
mixture  of  the  two  complementary  colors,  red  and  green,  necessarily  employed,  produce  white 
light.  This  of  course  does  not  affect  the  color-blind  in  the  same  way  as  the  normal-eyed ;  yet  it 
adds  to  their  confusion."  The  author  refers  to  an  article  in  the  "Chicago  Railroad  Review "  of 
March  30,  1878,  in  which  the  writer,  Dr.  Nelson,  an  optician,  says:  "  I  have  kept  records  of  vari- 
ous accidents  that  have  occurred,  both  upon  land  and  water,  during  the  past  few  years;  and  I 
have  gathered  such  information  about  some  of  them  as  I  could  get  outside  of  official  sources 
Often  I  was  unable  to  get  any  of  any  value;  but  I  am  convinced  beyond  a  doubt  that  a  large 
proportion  of  them  could  have  been  traced  to  color-blindness  for  a  correct  solution  as  to  the 
primary  cause  of  the  accident."  Dr.  Jeffries,  at  p.  137,  speaking  of  this  danger  to  the  community, 
and  the  necessary  protection,  says:  "  For  instance,  an  engineer  has  run  on  one  road  for  some 
five  or  ten  years  without  accident  of  importance.  The  superintendent  requires  him  to  pass 
examination  by  an  expert,  who  finds  that  he  is  markedly  red-blind,  and  shows  it  most  con- 
vincingly to  the  officials  of  the  board.  It  becomes  known,  and  they  then  do  not,  of  course, 


454  THE  LAW  OF  IDENTIFICATION. 

dare  to  keep  him  in  his  place.  He  is  dismissed,  to  protect  the  community  from  danger.  We 
need  no  better  proof  of  the  recognition  of  the  danger  than  the  measures  so  rapidly  taken 
for  the  last  two  years  on  so  many  of  the  European  roads,  and  which  are  being  initiated  by 
the  others.  Our  very  practical  American  people  have  recognized  the  danger  from  numer- 
ous colored  lights  or  signal-flags  in  having  gradually  discarded  them.  Many  roads  already 
use  only  red  by  night  or  by  day.  Green  and  red  are,  however,  most  generally  used  to 
signify  safety  and  danger.  From  experiment  and  experience  I  agree  that  they  are  right. 
We  cannot  give  up  color  for  form  by  night.  It  is,  however,  possible  by  day.  Is  the  danger 
any  less  great  in  the  United  States?  I  believe  the  danger  from  ignorance  of  its  existence 
is  not  small.  The  chief  of  the  Brotherhood  of  Locomotive  Engineers  told  me  he  had  not 
heard  of  color-blindness,  although  he  had  run  an  engine  twenty  years;  and  asked  me  with 
some  feeling,  whether  I  '  thought  a  man  was  fit  to  run  an  engine  who  could  not  tell  green  from 
red.1 "  The  same  author,  at  p.  146,  says  :  "  Prof.  Holgreeii  reports  that  of  seven  thousand 
nine  hundred  and  fifty -three  railroad  employees,  one  hundred  and  seventy-one  were  color-blind." 
Dr.  Krohn  reports  on  railroads  in  Sweden,  out  of  one  thousand  two  hundred  employees,  sixty 
color-blind.  Dr.  Jeffries,  p.  161,  says:  "  If  we  turn  from  the  land  to  the  sea,  we  shall  find  the 
dangers  from  color-blindness  as  great  or  even  greater.  The  large  majority  of  those  color-blind 
are  so  for  red  or  green.  These,  however,  are  colors  necessarily  chosen  by  all  nations  to  be  by 
law  carried  on  the  two  sides  of  all  vessels  from  sunset  to  sunrise  —  the  green  light  on  the  star- 
board side,  and  the  red  light  on  the  port  side.  These  are  so  arranged  that  they  can  only  both  be 
seen  when  the  vessel  is  directly  ahead,  and  far  enough  off  to  allow  us  to  see  both  sides.  These 
lights  show  us,  therefore,  the  position  and  the  direction  of  motion  of  a  vessel.  Mistaking  their 
color  will  of  course  be  most  disastrous."  Dr.  Romberg  has  classified  the  reports  of  some  maritime 
accidents  from  1859  to  1866.  The  author  shows  that  he  made  out  the  classification,  thus:  "  They 
numbered 2,408 


Want  of  skill,  or  carelessness  of  the  ship's  personnel,  or  the  accidents,  which  it  was  im- 
possible to  prevent  or  avoid 1,562 

Error  of  the  pilot  or  captain  215 

Want  of  observation  or  proper  interpretation  of  the  rules  of  the  way 537 

Undetermined  causes —                                                                                 94 


Under  the  last  three  heads,  In  the  large  number  of  eight  hundred  and  forty-six,  there  are  prob- 
ably some  attributable  to  color-blindness.  They  all  are  not  accidents  from  carelessness  or 
want  of  skill;  for  those  are  included  in  another  series."  At  p.  164,  Dr.  Favre,  speaking  of 
the  loss  of  a  vessel,  said:  •'  After  the  loss  of  the  Vitte  de  Havre,  the  newspapers  which  described 
the  collision,  stated  most  positively  that  the  green  light  was  not  recognized  in  time.  If  the 
steamer's  officers  and  crew,  who  should  have  seen  the  signal  light,  were  never  tested  for  color- 
blindness, there  is  one  chance  in  twenty  that  the  officer  or  sailor  whose  duty  it  was  could  not 
distinguish  green,  and  one  in  seventy-five  that  he  would  confound  this  color  with  red.  We  know 
how  the  matter  ended.  The  English  admiralty  decided  that  the  English  vessel  was  free  from  all 
blame,  and  the  French  admiralty  declared  that  the  French  vessel  could  not  be  in  any  way  crimin- 
ated. No  one  thought  of  attributing  the  mistake  to  the  very  probable  one  of  color-blindness." 
The  same  author  (p.  164)  says:  "  I  lately  had  curious  proof  of  the  color-blindness  of  a  sea  captain, 
who,  I  understand,  has  now  retired  from  active  service.  He  was  in  the  habit  of  working 
worsteds,  to  while  away  the  monotony  of  a  sea  voyage.  Those  worsteds,  however,  always  had 
to  be  picked  out  for  him,  and  the  colors  marked,  to  avoid  his  making  mistakes." 

These  few  extracts  from  a  late  and  valuable  scientific  work  are  here  noted,  because  they  are 
questions  of  identification.  And  it  is  certainly  obvious  to  all,  that  a  person  who  has  not  the 
perception  and  discrimination  to  Identify  the  different  colors  is  clearly  incompetent  to  flll  a 
position  which  requires  him  to  observe  signals  of  the  different  colors,  for  the  safety  of  com- 
munity by  land  or  Hea.  And  when,  in  the  light  of  science,  owners  of  vessels  and  railroad  com- 
panies, as  common  carriers  of  freight  or  passengers,  will  employ  or  retain  incompetent  officers 
or  servants,  they  should  be  held  liable  in  damages  for  losses  resulting  from  accidents  or  disasters 
by  reason  of  such  negligence, 


INDEX. 

(Figures  refer  to  sections.) 


A. 

Abatement.  gEC 

Actions. — Of  suits  —  name —  initial  letter , 80 

when  first  name  omitted 80 

misnomer  —  addition  —  surname 82 

when  defendant  might  plead  in 615 

Absence. 

Of  persons. — Casali  —  absent  thirty  years 617 

returned  and  claimed  his  estate 617 

of  attesting  witnesses 341,  354 

search  to  be  made  for  them 357,  362,  363 

evidence  of  diligence 357 

degree  of  diligence  —  good  faith 366 

Actions. 

On  bank  check. —  Identity  of  the  bank 91 

names  in  —  rule  in  England 106 

on  judgment  —  identity  of 106 

parties  to  —  report  of  death 107 

what  proof  is  necessary 107 

On  note. —  Against  the  indorser  of 293 

identity  of  parties  to 110,  310 

plea  —  statute  of  limitations 122 

interview  —  promise  to  pay 121 

payable  to  cashier  of  bank 92 

payable  to  treasurer  of  railroad  company 97 

name  of  indorser  —  witness  —  defendant 98 

action  against  indorser 293 

On  Mils  of  exchange. —  Payor  against  the  acceptor 446 

identity  of  handwriting 446 

acceptance  —  proof  of  signature 451 

drawer  and  indorser 375 

proof  of  signature  —  rule  in  England 384 

In  ejectment. —  To  recover  real  estate 116 

action  of  —  rule  in  Missouri 117 

where  parties  claim  from  a  common  source 311 

holding  under  deed  from  sheriff 313 


4:56  INDEX. 

Actions  —  Continued.  gEC 

In  ejectment. — Identity  of  name  prima  facie  identity  of  person,  in  land  titles.  312 

to  recover  lands  —  rule  in  Texas 314 

proof  of  land  grant  from  State  of  Georgia 341 

for  lands  —  heirsliip  —  claimants HO 

for  the  recovery  of  real  estate 116 

for  rents  —  judgment 117,  350 

averments  as  to  identity  of  person. .., 117 

claim  to  land  —  proof  of  heirship 110,  n. 

name  of  person  — when  presumptive  evidence Ill 

identity  of  devisee  —  evidence  of  heirship 299 

question  of  relationship  —  rule  in  Kentucky 299 

Identity. —  Identity  of  plaintiff  by  name 108 

identity  of  parties  —  general  rule 109 

presumptive  evidence  of  identity 109 

rule  in  England  and  Massachusetts 109 

proof  —  name  —  initials. . 110,  116 

Heal. —  To  foreclose  mortgage 403 

for  trespass  on  land 435 

In  damages. —  Against  proprietor  of  a  stage  coach 127 

liability  assumed  by  a  stranger , 127 

trespass  for  killing  a  dog 207 

against  a  steamboat  for  damages .... 222 

Adultery. 

Names. —  Names  of  persons  —  when  idem  sonans „ .  90 

misnomer  —  fact  for  the  jury 90 

father  and  son  —  same  name  in  same  town 189 

charge  of  adultery  with  one  —  presumed  to  be  the  father 189 

divorce  for  —  confrontation  decree  —  rule  in  England 50 

Age. 

Of  person*. —  When  it  must  be  proved 76 

not  to  be  taken  for  granted 76 

of  persons  from  appearance 181 

opinion  evidence  as  to  —  when  not  received 181, 196,  203 

by  the  teeth  when  known 251 

Cattle. —  Of  cattle  —  described  in  chattel  mortgage 531 

Alibi. 

Of  deceased. — When  accused  to  prove  alibi  of  deceased 250 

same  degree  of  proof  —  as  in  alibi  of  accused 250 

Almanac. 

Time.—  Use  of  almanac  in  court 220 

to  show  the  time  the  sun  sets 220 

Anarchists. 

Trial.—  Identification  of  their  instruments 265 

dynamite  bombs  —  comparison  of ...  265 


INDEX.  457 

Ancestor.  SEC. 

Identity. — Identity  of  claimant  to  lands 51,     52 

three  men  of  the  same  name 52,     53 

when  identity  of  name  sufficient 53 

proof  of  —  claim  to  lands 110,  n. 

identity  of  claimants  as  heirs. > 110,  n. 

proof  by  letters  and  receipts 113 

the  proof  the  handwriting 113 

how  proved  —  evidence  of  identity 113 

Ancient  Records  and  Documents. 

Land. —  Letters  as  proof  of  identity 113 

action  to  quiet  land  titles 113 

to  prove  handwriting  —  letters  and  receipts 113 

thirty  years  old  prove  themselves 288 

from  proper  custody  or  repository 288 

burden  on  him  who  presents  the  issue  , 288 

presumption  that  witnesses  will  be  dead 288 

proof  without  attesting  witnesses ...  288 

when  free  from  suspicion  of  fraud 288 

in  case  of  a  will  thirty  years  old 288 

applies  to  wills  and  deeds  —  same  reason 288,  294 

rule  in  several  of  our  States ....  289 

In  ejectment. —  Muniments  of  title  —  chain  of  title 289 

introduction  of  a  will  in  ejectment 290 

rule  in  Pennsylvania  and  New  York 290 

rule,  though  the  witness  living 290 

comparison  of  ancient  writings 291 

in  actions  of  ejectment 291 

deed  —  evidence  —  rule  in  Illinois 292 

expert  testimony  —  its  use  —  its  weakness 293 

deed  —  accompanied  by  possession 294 

takes  effect  from  date  of  execution 294 

will  —  from  the  death  of  the  testator 294 

will  —  lands  —  thirty  years'  possession 295 

proof  of  declarations  of  the  existence  of  a  will 295 

when  will  not  read  in  proof  of  execution 296 

will  —  devisees  —  name  —  identity  of  testator 297 

persons  claiming  to  be  heirs 297 

when  presumed  from  identity  of  name 297 

ejectment  —  agent  —  correspondence 304 

holding  under  sheriff's  deed 313 

Heirship. — Evidence  of  heirship  —  identity  of  devisee 299 

question  of  relationship  —  rule  in  Kentucky 299 

identity  of  heirs  —  parents  killed  in  railroad  accident 300 

by  papers  in  possession  of  deceased 300 

proof  of  pedigree  —  rule  as  to  evidence 303 

hearsay  and  tradition  —  when  admissible 303,  304 

declarations  —  documents  —  land  titles  305 

58 


458  INDEX. 

Ancient  Records  and  Documents  —  Continued.  SEC. 

Heirship. — What  constitutes  a  chain  of  title 305 

legacy  to  child  —  necessary  proofs 306 

a  question  whether  the  child  survived  the  ancestor 306 

parties  to  be  identified 310,  311 

when  both  claim  from  a  common  source 311 

name  —  when  evidence  of  identity 312 

Church  register. —  Proof  of  marriages  and  baptisms  .......  301,  307 

containing  all  that  is  required 301 

what  facts  can  be  entered 301 

child's  age  is  not  recorded  there 302 

plea  of  infancy  —  identity 302 

when  the  church  register  is  evidence ....  303 

widow's  action  for  dower 307 

child,  when  legitimate  —  proof  of  marriage 308 

proof  of  marriage  —  rule  in  Maryland 308 

pedigree  —  church  records  —  public  documents 309 

child's  baptism  —  not  evidence  of  his  birth 309 

Note. — Action  on  promissory  note 293 

question  of  forgery  —  expert 293 

Judgments. —  Name  in  judgment  when  idem  sonans 298 

docketing  judgment  —  lien  on  real  property 298 

idem  sonans  —  a  question  for  the  jury 298 

"Mathew"  and  "  Mather"  are  not 313 

Animals. 

Horses. —  Identity  of  —  in  chattel  mortgages 24,25,    26 

seen  by  the  flash  of  a  gun  at  night 59 

as  to  when  a  horse  is  frightened  —  opinion 212 

objects  calculated  to  frighten  horses 212 

opinion  as  to  horse  being  safe  and  kind 212 

rode  by  slayer  at  the  time  of  murder 234 

•    larceny  of  a  black  horse 217 

stolen  —  identity  —  rule  in  Texas 556 

chattel  mortgage  on  two  horses 526 

MuUs. —  Mortgage  on  two  mules 527 

description  of  the  property  —  identity , 527 

on  one  black  mule  in  Alabama 528 

in  chattel  mortgages , 23,     24 

Cattle. —  One  Durham  bull,  mortgaged 26,  540,     n. 

sufficiently  identified,  weighed  two  thousand  four  hundred  pounds.. 26, 

540,     n. 

larceny  of  a  bull  yearling 88 

in  chattel  mortgages 24,    26 

opinion  as  to  number  of,  in  range 229 

identity  of  —  ages  —  rule  as  to  description 531 

conveyed  by  chattel  mortgage 540 

cattle  stolen  —  identified  by  marks  and  brands 541,  549,  550 

Ilog. —  Larceny  of  one 29 


INDEX. 

Ardea.  SEC. 

Murder. —  Convicted  for  the  murder  of  her  husband 9 

detected  by  tracks  in  the  snow 9 

dead  body  found  in  the  field 9 

Arson. 

Attempt. —  Accused  identified  by  his  voice 14,  35,     36 

rule  in  Texas  and  Massachusetts 35,    86 

Assault. 
Name. —  Name  of  prosecutor  —  idem  sonans 96 

B. 

Bank. 

Identity. —  Identity  of,  by  reputation 91 

check  —  false  representation  —  risk 68 

note  to  cashier  of  bank 92 

identity  of  —  and  cashier 93 

when  check  discounted 419 

question  of  handwriting 419 

money  in  —  equitable  owner  —  identity 643 

misrepresentation  —  identifying  check  holder 638,  n. 

Larceny. —  Bond  note  stolen  —  non-production 568 

loose  manner  of  identifying 568 

Robbery. —  Of  bank  —  accused  identified  by  his  voice 553 

officers  —  when  called  to  testify 467 

Bastardy. 

Identity. —  Evidence  of  identity  —  rule  in  Maine 62 

resemblance  of  father  admissible 62 

child  in  court  —  before  jury 62 

rule  on  the  subject  in  Indiana 63,  67 

rule  as  held  in  North  Carolina 65 

bastard  child  received  in  evidence 65,  66 

legitimacy  of  bastard  in  North  Carolina 66 

when  alleged  to  be  of  mixed  blood 66 

Bigamy. 

Identity.— Tolson's  case  —  rule  in  England 161 

identity  of  second  wife 49,  161 

when  evidence  is  insufficient 49 

name  of  wife  —  idem  sonans 89 

identity  by  photograph  —  second  wife 161 

witness  speaking  from  memory 161 

perjury  —  weight  of  evidence 55 

Bills  of  Exchange. 

Identity. —  Drawer  and  indorser 375 

proof  of  signature  —  English  rule 384 


460  INDEX. 

Bills  of  Exchange  —  Continued.  SEC. 

Identity. — Comparison  of  handwriting 397,  399 

indorser  against  acceptor 447 

comparison  not  permitted 447 

acceptance  —  handwriting 451 

Forgery. —  Alleged  forgery  of 397 

where  comparison  admitted 397 

letter  —  comparison 399 

action  of  payor  against  acceptor 446 

witness  saw  defendant  write  once  before 446 

held  to  be  sufficient  „  ...  446 

Blood-Stains. 

Wound. —  On  clothing  —  inspected. . .     10,  11,  151,  245 

on  coat  of  deceased 172 

photographic  view  of 0 .  172 

opinion  evidence,  as  to 181,  199 

on  a  shirt  —  identified. 240 

found  on  boards 262 

admissible  in  evidence. 262 

found  on  weapons  —  tests 270,     n. 

on  cloth  —  period  of  time 270,     n. 

age  of  stain,  uncertain 270,    n. 

Bonds. 

Appeal. —  For  appeal  — fictitious  —  signing . .  .  72 

name  on  — as  surety 85 

signed  by  several  obligors 115 

same  —  name — evidence 115 

subscribing  witness  to 338,  339 

Deputy  sheriff.—  Of  deputy  sheriff 343 

rule  as  to  proof  of  execution 344 

Injunction. —  Injunction  bond  —  proof  of  execution 345 

Official. —  Official  bond  of  tax  collector  —  surety 412 

name  inserted  after  signing 412 

proof  of  due  execution 414 

Boundaries. 

Land.—  When  bounded  by  river  —  not  navigable 20,  482 

grantee  takes  to  the  center  of  the  stream 21,  482 

when  two  descriptions  —  construction  of 483 

erroneous  description  rejected 483 

effect  given  to  the  correct  one 484 

located  by  metea  and  bounds  —  parol  proof 484 

See  LAND. 

Bull. 

Identity.—  Durham  —  described  —  identified. . .     26,  540,  n. 

stealing  a  red  bull  yearling 88 


INDEX.  461 

Burglary.  SBC. 

Identification. —  Accused  recognized  by  his  voice 36,  37,  222 

mistaken  identity  as  to 45 

corrected  in  time  to  save  an  innocent  man 45 

false  key  found  near  the  scene 57 

identity  of  the  accused 123 

same  —  name  —  presumption  of  identity 124 

name  with  alias  added 124 

identity  on  second  conviction 141 

what  evidence  necessary 141 

when  acquitted  of  larceny  —  convicted  of  burglary 152 

opinion  evidence —  time  of  sunset 220 

as  to  the  weight  of  opinion  evidence ,,,,, , 223 

c. 

Cattle. 

Mortgaged. —  In  chattel  mortgage  —  description 24,  26 

identity  of  cattle  —  age —  rule  as  to  description 531 

bull  mortgaged  —  identity  of 26,  540 

Stolen.  —  Larceny  of  a  red  bull  yearling 88 

of  one  cow  —  identity  of  the  accused 552 

opinion  as  to  the  number  in  a  range 229 

Chattels. 

Mortgaged.  —  Two  mortgages  on  one  horse 526 

one  mortgage  on  two  mules 527 

description  of  the  property 527 

See  PERSONAL  PROPERTY. 

Child. 

Lost. —  Supposed  to  have  been  found  46 

mistaken  identity  —  experts  disagreed 46 

marked  with  vaccination  and  small-pox 46 

Murder.  —  Alleged  to  have  been  murdered. 245 

by  its  mother  —  rule  in  England 245 

Legacy. —  Necessary  proof  of  identity 306 

when  legitimate  —  proof  of  marriage 308 

evidence  required  —  rule  in  Maryland 308 

church  register  —  proof  of  marriage  and  baptism 301,  307 

baptism  is  not  evidence  of  birth 309 

pedigree  —  church  records 309 

Circumstantial  Evidence. 

Murder. —  How  identity  to  be  established t 6,  8,     70 

Tracks. —  Tracks  near  the  scene  of  the  crime .8,  9,  142,  144,  277 

in  murder  trial  —  rules  of  evidence 279 

tracks  as  evidence  of  identity 278 

tracks  made  in  the  ashes 611 

when  they  were  made  in  the  snow 9 


462  INDEX, 

Circumstantial  Evidence  —  Continued.  BEG. 

Tracks. — To  establish  the  fact  of  murder  . .   277 

Clothing. —  Worn  by  the  accused  at  the  time 10,  151 

worn  by  the  deceased  at  the  time 10,  146 

coat  and  pants  of  the  deceased  148 

deceased  stripped  —  clothing  concealed 150 

dragged  six  miles  by  the  neck 150 

blood-stains  on  clothing 10,  11,  151,  345 

on  coat  of  deceased 172 

opinion  evidence  as  to „ 181,  199 

Weapons. —  Found  near  the  scene  of  the  crime 8,  9,    60 

death  by  cutting  with  a  knife 154,  155 

anarchists  —  use  of  dynamite  bombs 155 

club  found  with  hairs  on  it 218 

killing  with  a  dirk  —  identity 231,     n. 

killing  with  pistol  —  examined  by  jury 267 

by  gun  shot  — assassination 154 

See  LARCENY;  ROBBERY;  BURGLARY;  RAPE. 

Christian  Name. 

Variance. — Middle  letter  in  —  may  be  omitted 80 

it  may  be  transposed  —  immaterial  variance 80 

middle  letter  is  no  part  of  the  name 80 

in  deed  —  the  variance  is  not  fatal 80 

first  name  omitted  —  effect  —  abatement 80 

when  it  is  sufficient  to  identify 2,  98,  99 

"  junior  "  is  no  part  of  the  name 79 

misnomer  —  defective  orthography 84 

on  bond  of  another  as  surety 85 

of  an  indorser  on  promissory  note 98 

when  names  are  not  idem  sonans 86 

Church  Register. 

Contents. —  Of  marriages  and  baptisms 301 

containing  all  that  is  required 301,  307 

what  facts  are  to  be  recorded 301 

plea  of  infancy  —  question  of  identity 302 

child's  age  not  required  to  be  recorded ....  302 

Evidence. —  What  is  required  to  be  kept  in 301,  302 

when  it  is  proof  of  pedigree 303 

widow  —  action  to  recover  dower 307 

entries  when  kept  in  a  day-book 307 

child's  baptism  —  not  evidence  of  birth 309 

Clothing. 

As  evidence. —  Circumstantial  evidence  of  identity 9,  10,  11,  151,  245 

of  deceased  person  —  identity  of  deceased 10,  172,  240 

worn  by  accused  at  time  of  homicide 10,  240 

exhibited  to  the  jury  on  trial 10,  240 

of  the  deceased  —  identified ..  146 


INDEX.  463 

Clothing  —  Continued.  SEC  . 

As  evidence. — Clothing  and  rug  exhibited  to  the  jury 147 

coat  and  pants  of  deceased 148 

case  of  assassination  —  rule  in  Texas 148 

coat,  overcoat,  pants,  vest  and  hat 149 

deceased  stripped  —  clothing  concealed 150 

dragged  six  miles  by  the  neck 150 

blood-stains  on  clothing 151 

where  the  body  was  burnt  —  clothing  destroyed 156 

reason  for  not  producing 187 

mask  found  near  the  scene  of  the  homicide 263 

dress  —  a  circumstance  of  personal  identity 266 

too  much  importance  attached  to 266 

impressions  on  the  ground  by 280 

corduroy  pants  —  been  mended 280 

Color. 

Of  things. — Of  liquor  —  retailing  —  evidence  of 181,  197 

witness  said  it  looked  "reddish" 197 

oxen  mortgaged  —  description  — ' '  red,  white  and  blue  "  . . 529 

larceny  of  a  "  red"  bull  yearling 88 

larceny  of  a  "  black  "  horse 217 

Color-Blindness. 

Defect. — Want  of  discrimination  between  colors 647 

navigation  and  railroad  transportation 647 

signal  lights  of  different  colors 647 

incompetency  of  persons  color-blind 647 

liability  for  accidents  and  disasters 647 

its  dangers  and  detection 647,     n. 

Compulsory  Physical   Examination. 

Of  person. — As  a  question  of  constitutional  right 605 

when  power  is  discretionary 597 

Damages. — Of  person  by  jury  —  injured  parts 593 

examination  for  personal  identity 593 

extent  and  nature  of  injury 593 

when  the  court  will  not  compel 593 

examination,  when  necessary 594 

Railroad. — Action  against  railroad  company  for  damages 594 

when  party  unwilling  to  submit  to 594 

railroad  employee  —  rule  in  Iowa 595 

application  —  when  to  be  made  —  when  allowed 595 

order  requiring  party  to  submit  to 595 

compulsory  examination  by  experts 595 

injury  received  on  hand  car .....  596 

steam  and  hot  water  thrown  on  him 596 

compelled  to  submit  to  examination 596 

in  the  sound  discretion  of  the  court 596 

right  —  discretionary  power 597 


4:64  INDEX. 

Compulsory  Physical  Examination  —  Continued.  SBC. 

Railroad. — The  power  must  not  be  abused 597 

unknown  to  our  law  or  practice 597 

injury  by  railroad  train 597 

when  the  court  may  compel 598 

Turnpike. — Action  against  a  turnpike  company 598 

when  the  party  refuses  to  submit 599 

conflict  —  rule  in  Arkansas 600 

third  view  of  the  question 600 

when  defendant  entitled  to  the  right 600 

same  —  rule  in  Pennsylvania 601 

agreement  to  build  a  house 601 

personal  injuries  —  rule  in  Minnesota 601 

when  examination  properly  refused 602 

Zfalpractice. — For  malpractice  —  examination  of  the  patient 603 

old  rule  of  evidence  in  Massachusetts 604 

Prisoner. — Defendant  compelled  to  produce  evidence  against  himself 605 

forcible  examination  of  a  female  prisoner 605 

a  violation  of  the  Constitution 605 

marks  and  scars  —  identity  of  prisoner 605 

murder  —  tattoo  marks  —  compelled  to  show 605 

accused  —  not  required  to  convict  himself 606 

does  the  Constitution  protect  ? 606 

our  courts  following  English  precedents , 606 

discussion  of  the  subject  —  two  views 606 

murder  —  accused  examined  by  coroner 607 

sustained  —  rule  in  North  Carolina 607 

indictment  for  rape  —  identity  of  accused ...  608 

prosecutrix  picked  him  out  of  a  crowd 608 

tracks  in  a  corn-field  —  rule  in  North  Carolina 609 

compelled  to  place  his  foot  in  the  track 609 

free  negro  carrying  arms 610 

accused  inspected  by  the  jury 610 

to  see  if  he  was  actually  a  negro 610 

accused  compelled  to  make  tracks 610 

to  place  his  foot  in  ashes 611 

to  make  evidence  against  himself 611 

prisoner's  testimony  used  against  him 612 

discussion  of  the  subject 612,     n. 

Conviction. 

Accused. — Former  conviction  —  as  a  plea 636 

former  acquittal  or  conviction 636 

what  amounts  to  jeopardy 636,     n. 

counterfeiting  —  former  j  udgment  —  identity 637 

two  indictments  for  one  crime 636 

Corpus  Delicti. 

In  crime. —  In  criminal  practice  —  essential 15 

first  thing  to  be  established  —  New  York  statute 15,  232 


INDEX.  465 

Corpus  Delicti  —  Continued.  SEC. 

In  crime.  —What  proof  is  necessary  to  establish 232 

Murder. —  When  dead  body  not  recognized 232 

when  dead  body  has  been  destroyed 232 

means  of  identifying  the  dead  body 232 

first  step  is  identification 252 

uncertainty  of  circumstantial  evidence 252 

difficulty  in  recognizing  the  dead 252 

proof,  when  —  body  not  found  —  consumed 247,  253,  626 

identification  of  the  deceased 273,  274 

when  deceased  had  not  been  seen  by  the  witness 274 

must  be  proved  —  confession  not  sufficient 283,  284 

beyond  a  reasonable  doubt 283 

what  is  a  reasonable  doubt  —  definition 277 

How  proved. —  How  the  corpw  delicti  may  be  proved 284 

by  papers  in  possession  of  deceased 284 

what  is  necessary  to  prove 284,  n. 

it  has  two  component  parts 286 

death  the  result  of  criminal  agency 286 

identity  of  the  criminal 286 

Counterfeiting. 

Money. —  Evidence  of  signature 400 

bank  teller  may  prove  handwriting 400 

existence  of  bank  proved  by  reputation 400 

in  case  of  forgery  —  who  may  prove 400 

rmer  judgment  —  identity 637 

Cow. 

Stolen. — Larceny  of  —  identification 30,  32,  552 

See  CATTLE;  LARCENY. 

dime. 

Identity. —  Evidence  of  —  instruments  found 57,  60 

tools  of  a  burglar 57 

when  death  caused  by  gun  shot 57 

identity  of  instrument  of  crime 57 

impressions  made  at  the  scene  of  the  crime 60 

See  MURDER;  ARSON;  ROBBERY;  BURGLARY;  LARCENY. 

D. 

Dead  Bodies. 

Identity  of. —  When  decomposed  beyond  recognition 15,  232 

when  drowned  or  when  burnt.   , 16,  247,  253 

when  identified  by  the  teeth 17,  235,  247,  250,  253,  255,  256,  257 

when  dragged  six  miles  by  the  neck 150 

By  photograph. —  Identity  of  body  by  photograph 159 

and  by  other  corroborating  circumstances 159 

59 


466  INDEX. 

Dead  Bodies  —  Continued.  gEC. 

By  photograph. — Dead  husband  identified  by  his  widow 160 

by  use  of  photograph 160 

when  found  in  the  woods ..  167 

murdered  for  life  insurance 167 

identified  by  photograph 168 

escaped  lunatic  found  dead 168 

difficulty  in  identifying 168 

to  identify  the  head  of  murdered  man 246 

Exhumed. —  Identified  by  bones  and  shoes 235 

decomposition  of  dead  bodies 249 

exhumed  three  times 256 

rapidity  of  —  depends  on  circumstances 249 

state  of  preservation  —  period  of  time 249,  n. 

dead  house  at  St.  Bernard 249,  n. 

remains,  how  identified 252 

proof  of  corpus  delicti 252,  284 

evidence  of  identification 252 

Found. —  When  not  recognized 232 

identified  by  circumstances , 168,  n. 

identity  of  —  New  York  statute 236 

articles  found  near  the  body 236 

when  witness  saw  deceased  alive  but  once 248 

alibi  of  alleged  deceased 250 

opinion  evidence  of  identity 250 

found  in  the  water  —  drowning 255 

difficulty  in  ascertaining 255 

where  the  skeleton  was  found 264 

dirk  found  one  hundred  yards  from  body 269 

identity  of  —  opinion  evidence 276 

two —  dragged  to  the  bushes 151 

opinion  of  brother-in-law  —  as  to  identity 276 

five  months  after  death  of  deceased 276 

when  much  changed  in  appearance 276 

found  in  the  woods  —  not  identified  —  confession 283 

identified  by  papers  in  his  possession 284 

mistake  as  to  identity  of 622 

Clothing.—  Of  deceased  person  —  identity  of  deceased. 10,  172,  240 

of  the  deceased  —  identification  of 146 

clothing  and  rug  exhibited  to  the  jury 147 

coat  and  pants  of  deceased 148 

case  of  assassination  —  rule  in  Texas 148 

coat,  overcoat,  pants,  vest  and  hat  149 

deceased  stripped  —  clothing  concealed 150 

Death. 

Homicide. —  Caused  by  drowning 16,  255 

difficulty  in  ascertaining  the  cause 255 

See  MUKDER;  DEAD  BODIES. 


INDEX.  467 

Deed.  SEC. 

Realty. — Conveying  real  estate 56,  110,  414 

name  in  —  presumption  of  identity t 56 

of  land  certificate  —  name 102 

name  —  prior  holder  and  grantor  —  presumption 110 

same  name  in  presumption. ...    ,.  116 

proof  of  execution  of 116 

when  thirty  years  old  —  proves  itself 288 

to  father  or  son  —  same  name 122 

proof  of  execution  —  subscribing  witness 344,  414 

necessity  of  proving  on  trial 353,     n. 

name  —  widow's  dower  —  identity 403 

name  in  which  title  is  acquired 403 

description  of  land  in  deed 18,  20,  480,  483,  484,  486,  489 

two  descriptions  —  general  and  particular ,483,  485 

if  one  erroneous  —  it  may  be  rejected 483 

when  title  to  pass  to  grantee 485 

courses  and  distances  yield  to  monuments ..,,  .,,.  485,  487 

See  LANDS  ;  HANDWRITING. 

Description. 

Of  things.  —  Of  real  estate  in  deeds 480,  483,  484,  486,  489 

of  personal  property 23,  24,  25,  80,  526,  527,  530,  532,  535,  536 

See  LANDS;  DEEDS;  PERSONAL  PROPERTY. 

Dynamite. 

Bombs. —  Used  by  the  Anarchists 265 

bombs  compared  and  identified  265 

used  as  instruments  of  death 265 

Disease. 

Opinion.  —  Of  slaves  —  opinion  evidence 190 

sickness  —  soundness  of  a  slave 215 

when  incapacitated  for  labor 215 

_^_    Divorce. 

Decree. —  Confrontation  decree 50 

ecclesiastical  court  —  practice 50 

Dog. 

In  court. — When  to  be  brought  into  court 33,  574,  575 

opinion  evidence  as  to  the  value  of 181,  257 

trespass  for  killing 207 

notice  to  bring  into  court 207,  208 

participating  in  a  fight 628,  n. 

mistaken  identity  —  among  policemen 628,  n. 

Dress. 

Identity  by. —  Of  persons  —  evidence  of  identity  11,  266 

clothing  with  blood-stains 11,  151 

See  CLOTHING. 


468  INDEX. 

E. 

Hjectment.  SEC 

Land. —  Agent —  correspondence 314 

when  received  in  evidence 314 

to  recover  land  —  identity  of  parties 310,  311 

when  parties  claimed  from  a  common  source 311 

holding  under  sheriff's  deed 318 

identity  of  name — prima  facie  identity  of  person  —  in  titles 312 

for  land  —  rule  in  Texas 314 

married  woman  —  deed  in  former 314 

proof  of  land  grant  —  from  State  of  Georgia 341 

notice  —  witness  to  —  when  absent 355 

proof  of  handwriting 398 

proof  of  will  —  of  grantor 398 

rule  in  Pennsylvania 423 

See  LANDS  ;  ANCIENT  DOCUMENTS. 

Election. 

Officers. —  Mistake  in  ballots  cast 128 

name  of  candidates  —  rule  in  contested  elections 129 

name  should  be  expressed  —  error  in  spelling 129 

name  written  on  the  ballot 129 

circumstances  of  public  notoriety 129 

are  to  be  received  in  evidence 129 

evidence  dehors  the  ballot  129 

intention  of  the  voter  to  be  determined 129 

same  —  rule  in  several  States ., 130 

Names. —  "  Finegan  "  for  "  Finnegan,"  idem  sonans 130 

votes  for  men  not  candidates 130 

candidates  by  wrong  initials 1,  130 

"  Hubba,"  "  Huba,"  ' '  Huber,"  and  "  Hub  "  for  Hubbard 180 

all  intended  for  Hubbard ISO 

contest  for  office  —  rule 131 

"H.  F.  Tates"  for  "  Henry  F.  Yates" 131 

District  attorney. —  Ely  and  Carpenter  for  district  attorney 131 

variance  as  to  both  in  initials 181 

same  rule  in  Michigan  132 

for  "  H.  J.  Higgins  "  intended  for  "  Henry  F.  Higgins  "....,,,  ,,,.,.  182 

Experts. 

Testimony. —  Weak,  feeble  and  decrepit 180 

not  acted  on  to  the  exclusion  of  other  testimony 193 

in  case  of  death  by  drowning , 16 

as  to  marks  on  a  child  —  disagreed 46 

as  to  death  by  poisoning  —  disagreed 275 

Handwriting. —  As  to  forgery  of  handwriting  — disagreed 175 

proof  of  handwriting  —  points  of  difference 125 

given  only  by  expert  witnesses 125 

comparison  of  handwriting 386 


INDEX.  469 

Experts  —  Continued.  SEC. 

Handwriting.  —  Post-office  clerk  —  inspector  of  franks  .....  ................     395 

of  handwriting  —  rale  in  America  ...................................  383 

comparison  —  rule  in  Massachusetts  ...................................  386 

genuineness  of  signature  ...........................................  386 

on  questions  of  forgery  .............................................  293 

On  photographs.  —  As  to  photographs  ......  ..............................  163 

whether  or  not  a  good  likeness  ......  .  .............................  163 

special  skill  and  knowledge  of  the  art  ................................  163 

Generally.  —  When  exhibited  to  show  apparent  good  health  ................  164 

action  for  life  insurance  on  the  policy  ...................  -  ............  164 

expert  testimony  —  general  rule  .....................................  179 

exceptions  to  the  general  rule  .......................................  179 

opinion  of  non-expert  witnesses  .....................................  179 

reasons  for  the  exception  ....   ......................................  179 

rule  in  questions  of  identity  ........................................  179 

instances  of  exceptions  —  formerly  limited  ............................   180 

facts  upon  which  opinion  is  based  ........   .........................  180 

in  trials  for  murder  ...................................  .  .........  211,     n. 

testimony  as  to  drowning  ...........................................  255 

when  called,  and  for  what  purpose  ..................................  392 

testing  questions  of  identity  ........................................     415 

compulsory  examination  by  ..........................................  596 

F. 

Father  and  Son. 
Name.  —  When  they  are  of  the  same  name  ..............................  122 

father  presumed  to  be  the  one  named  .................................  122 

deed  to  that  —  name  when  living  together  .............................  122 

same  —  adultery  with  one  of  them  by  name  ...........................  189 

father  presumed  to  be  the  man  .......................................  189 

testimony  as  to  son  —  not  permitted  ..........................  •    .....  189 

Forgery. 
Names.  —  Signature  —  opinion  evidence  .................................  125 

of  bill  of  exchange  —  indictment  .....  .  ..............................     25 

non-experts  —  points  of  difference  excluded  ..........................  125 

comparison  of  signatures  ...........................................  125 

of  codicil  to  a  will  ..................................................  405 

of  promissory  note  —  proof  ...............  ,  ..........................  408 

alleged  maker  deceased  ..............................................  408 

expert  testimony  —  rule  in  New  York  ................................  .  408 

indorsement  of  note  —  alleged  forgery  ...............................  413 

of  receipt  for  part  payment  on  land  contract  ...........  .  .......  .....  424 

officers  of  bank  called  to  testify  ......................................  467 


Goods  and  Chattels. 
Horses.  —  Described  in  chattel  mortgages  ........................  24,  25,  28,  527 


470  INDEX. 

Goods  and  Chattels  —  Continued.  SEC. 

Horses. — Opinion  as  to  being  gentle  and  safe 212 

objects  calculated  to  frighten  horses 212 

as  to  when  a  horse  is  frightened 212 

larceny  of  a  black  horse 217 

*Cattle. —  Larceny  of  a  red  bull  yearling 88 

of  one  cow  —  identity  of  the  accused 552 

mortgage  of  a  Durham  bull 26,  540 

identity  of  cattle  —  rule  as  to  description 531 

Mules. —  Mortgage  on  two  mules 52T 

description  of  the  property  —  identity 527 

Goods. —  Stock  of  goods  —  transfer  of 101 

delivered  to  a  swindler 119 

using  name  of  another  man 119 

delivered  wrong  man  —  but  same  name 120 

by  express  —  company  not  liable 120 

sold  and  delivered  —  note  for 413 

indorser  on  note  —  signature 413 

In  court. —  Goods  and  chattels  in  court  for  identity 573 

when  necessary,  safe  and  convenient 573 

portable  goods  in  court  —  exhibited 33,  34 

dog  brought  into  court 33,  574,  575 

See  PERSONAL  PROPERTY. 

Gun. 

Weapon. —  Deceased  killed  by  gun  shot ,   j.54 

assassination  from  the  bushes 154 

buck-shot  found  ...   154 

in  murder  —  opinion  as  to  position  of  slayer 230 

deceased  shot  through  his  window 263 

flash  of  —  in  the  dark  —  identity  of  person  firing .42,     43 

whether  possible  to  recognize  him ,  42,     43 

experiments  by  experts  —  they  disagree 42,    43 

flash  of  a  pistol  —  horse  recognized 59 

indictment  for  stealing  a  gun 206- 

opinion  evidence  as  to  value  of 181,  207 

H. 

Handwriting  —  Subscribing  Witness. 

When  witness  out  of  the  way 830,  n. 

Absent.—  When  out  of  the  State   830,  n. 

search  for  witness  in  good  faith 330,  n. 

proof  of  handwriting  of  the  witness  880,  n. 

but  not  of  the  obligor    880,     n. 

the  more  convincing  evidence 830,  n. 

importance  of  the  signature  of  the  obligor    880,  n. 

reason  for  such  a  rule 880,  n. 

proof  of  signature  of  obligor  —  made  secondary  evidence 380,  n. 

witness  absent  —  collusion 331 


INDEX.  471 

Handwriting  —  Subscribing  Witness  —  Continued.  SEC  . 

Absent. —  Reason  of  the  rule  —  difference  in  ruling 332 

Search  for. —  Diligent  inquiry  for  witness 333,  357,  358 

attesting  witness  avoiding  subpoena 334 

when  he  cannot  be  found 335 

two  witnesses  —  one  absent 338 

absence  of  all  to  be  accounted  for 34f 

degree  of  search  —  good  faith  —  no  fraud 336 

Rule  —  Origin. —  Name  —  proof  of  signature  —  identity 113 

identity  of  signature  of  attesting  witness 327 

origin  of  the  rule  in  England 327 

same  — admission  —  rule  in  England 328 

frank  admission  of  obligor  —  not  conclusive 328,  329 

doubtful  rule  —  conflict  of  opinion . .  330 

courts  refuse  to  inquire  into  its  original  correctness 330 

when  the  writing  of  the  obligor  may  be  proved 330 

when  secondary  evidence  admissible ,330,  n. 

Land  titles. — Land  grant —  signature  —  copy 178 

claim  of  land  from  ancestor „ „ 113 

witness  to  a  deed  —  intention  to  leave 332 

disagreement  of  the  j  udges . . . '. 332 

when  secondary  evidence  to  be  received 333,  334 

land  grant  —  from  State  of  Georgia 341 

to  a  deed  when  the  witness  is  dead 344 

conflict  of  opinion  in  England 344 

i  proof  of  name  —  when  prima  facie 345 

deed  to  father  or  son  —  same  name 347 

presumption  —  to  father  —  circumstances  of  the  case 347 

necessity  of  proving  deed 353,  n. 

deed  lost  —  abstract  or  copy  received. ...  358,  n. 

ejectment  —  notice  —  witness  to  —  must  be  called 355 

when  absent  —  must  be  accounted  for 355 

Bond. — Action  against  executor  on  bond 338 

plea  of  non  est  factum » . .  338 

proof  of  handwriting  of  absent  witness 338 

one  dead  —  one  in  Canada 339 

compliance  with  the  English  rule 339 

presumption  raised  by  attestation 339 

suit  on  bail  bond  —  taken  by  lower  sheriff 343 

the  handwriting  of  the  witness 344 

action  on  injunction  bond 345 

identity  of  individual  who  signed 345 

as  to  name,  residence  and  profession 345 

bond  of  deputy  sheriff 343 

co-obligor  cannot  prove  signature  of  the  other  obligor 367 

best  evidence  required  first 367 

when  contract  may  be  proved  without  writing 367 

two  witnesses  to  a  bond  —  signature  denied 373 

parties  choosing  the  subscribing  witness 373 


472  INDEX, 

Handwriting  —  Subscribing  Witness  —  Continued.  SBC. 

Bond. — Several  witnesses  —  necessity  of  calling  them 373 

confession  by  obligor  —  not  sufficient 374,  375 

where  it  is  thirty  years  old 374 

what  a  party  says  is  evidence  against  him 374 

Photograph. — Proof  by  photograph  copies 170 

photograph  of — rule  in  Indiana  and  Texas 172,  173 

papers  —  when  withdrawn 171 

genuineness  of  —  photograph  copy 175 

alleged  alteration  of  check 176 

altered  from  ' '  one  "  to  "  fifteen  "  hundred  „ 176 

used  as  secondary  evidence 359 

writing  signature  —  evidence 352 

proof  of  letters  and  receipts 113 

Obligations. — Corporation  certificate  of  organization 115 

proof  by  attesting  witness 117 

proof  of  signature  to  a  bill 121,  n. 

comparison  of,  by  non-expert ....  125 

as  to  points  of  difference  —  excluded 125 

opinion  evidence  —  exception  to  the  general  rule 127 

points  of  difference  —  for  experts  only 127 

power  of  attorney  —  presumption  of  death 341 

one  may  prove  execution  of  will 341 

execution  of  warrant  of  attorney 342 

name  — promissory  note  —  suit  for  rent 350 

question  of  identity  —  liability 350 

name  —  identity  of  person. ...  350 

to  promissory  note , 354 

witness  removed  from  the  State 354 

proof  of  his  signature 354 

vendee  —  to  prove  bill  of  sale „ 356 

rigid  rule  as  to  proof  of  title  to  goods 358 

America  following  English  rule 358 

obligor  and  witness  —  when  both  dead 360 

may  prove  signature  of  obligor 360 

indorser  on  note 380 

Witness. — When  he  does  not  remember 336,  337 

what  to  be  inferred 336 

same  —  rule  in  Kentucky 337 

when  witness  acknowledged  his  signature  837 

recollection  —  name  —  circumstances 342 

commission  to  examine  witnesses  in  London 842 

subscribing  witness  —  proof  of 848 

not  allowed  to  write  in  presence  of  jury 848 

interested  witness  —  when  incompetent 856 

party  to  proceedings  or  otherwise  356 

search  for  witness  first 862,  363 

proof  of  signature  of  witness 359 

same  —  conflict  —  rule  as  to  handwriting 860 

when  witness  disappears  — cannot  be  found 863,  864 


INDEX.  473 

Handwriting —  Subscribing  Witness  —  Continued.  SEC. 

Witness. — Plea  of  non  est  factum 364 

hazard  —  danger  and  injustice  364 

what  amounts  to  diligent  search  for 365 

knowledge  of  writing  —  how  acquired 368 

what  is  primary  evidence 368 

identity  —  formerly  restricted 368 

general  rule  on  the  subject 369 

from  examining  papers  —  official  and  business 369 

by  observation  and  comparison 370 

singular  case  in  England 370 

by  affidavit  in  the  case 370 

attesting  witness  —  proof  —  when  and  how  made 371 

when  all  the  witnesses  are  dead  or  absent 371 

proof  of  signature  of  any  one  of  them 371 

witness  to  deed  —  proof 372 

impeaching  witness  —  as  in  case  of  forgery 372 

comparison —  not  to  be  permitted 372 

attesting  witness  —  satisfactory  evidence 376 

some  courts  require  further  proof 376 

Rules. —  Concealment  of  facts  of  forgery 335 

doctrine  of  idem  sonans 345,  346 

parties  to  actions  —  variance  in  name  348 

when  "  junior  "  is  omitted 348 

Handwriting  —  Comparison. 

Rule  in  England. —  Witness  not  generally  permitted  to  compare 382 

done  under  some  circumstances  —  generally  denied 382 

genuineness  of  signature  —  a  question  for  the  jury 382 

when  compelled  by  necessity 382 

expert  testimony  —  rule  in  America 383 

by  seeing  the  person  write  —  examining  papers,  etc 383 

same  —  comparison  —  rule  in  England 384 

papers  irrelevant  to  the  record  394,     n. 

why  comparison  was  not  allowed 396 

illiteracy  of  the  jury  in  England 396 

same  —  conflict  of  opinion 397 

best  evidence  —  rule  in  New  York 401 

by  those  who  have  seen  the  parties  write. ...  401 

known  by  an  official  correspondence 401 

witness  absent  —  denies  attestation 406 

lets  in  secondary  evidence 406 

when  treated  as  though  there  was  no  witness 406 

when  signature  of  maker  may  be  proved 406 

submitting  instrument  to  the  jury 412 

official  bond  of  tax  collector 412 

name  inserted  after  signing 412 

evidence  —  comparison  —  new  witness...  416 

juxtaposition  of  two  writings 416 

writing  not  submitted  to  jury 416 

60 


474  INDEX. 

Handwriting  —  Comparison  —  Continued.  SEC. 

Rule  in  England,. —  What  is  equivalent  to  a  new  execution 416 

different  rules  on  the  subject „ , 437 

a  rule  based  on  better  reason 437 

English  statute  (1854)  permits  comparison 442 

extent  of  the  statute  —  construction 427 

General  rule. —  Dispute  as  to  the  execution  of  a  bond 476 

attested  in  the  absence  of  the  obligor 476 

comparison  on  cross-examination 388 

rule  in  England  on  the  subject 38S 

when  admitted  to  test  knowledge 38& 

no  infringement  of  the  rule 388 

same  —  rule  in  Kentucky  and  New  York 390,  391 

method  of  proving  handwriting 470 

best  evidence  to  be  produced 470 

when  writing  is  known  to  the  court 460 

comparison  —  rule  in  England 461 

applies  to  one  who  can  compare  461 

same  —  rule  in  Alabama 462 

adherence  to  the  former  rule 462 

where  judgment  goes  by  default .... 450 

in  civil  and  criminal  practice 450 

signature  on  a  receipt  —  proof  of  —  insufficient 454 

opinion  founded  upon  a  circumstance 454 

evidence  —  identification  of  handwriting 434 

secondary  evidence  requires  but  one  witness 434 

identity  of  obligor  —  to  the  paper 434 

name  signed  to  a  letter  does  not  identify  the  defendant 434 

comparison  —  English  and  American  rule 426 

when  witness  said  it  looks  like  his  signature 426 

admission  of  obligor  —  signature 421 

held  to  be  insufficient 421 

receding  from  the  English  rule 421 

obligor's  admission  —  conflict  of  opinion 402 

not  admissible  —  though  made  under  oath 402 

Witness. —  Testing  the  knowledge  of  witness 409 

comparison  of  signature 409 

opinion  of  witness  as  to  genuineness 409 

rule  as  to  attesting  witness 414 

when  the  jury  may  presume  the  execution 414 

circumstances  submitted  to  the  jury . .   414 

when  it  may  go  in  evidence  to  the  jury 414 

when  collateral  —  testing  admissibility 414 

witness  —  source  of  knowledge 417 

as  to  the  genuineness  of  handwriting . 417 

continued  and  protracted  correspondence 417 

genuineness  of  letters  and  signatures 417 

signature  of  attesting  witness  —  comparison 432 

genuineness  of  signature  of  attesting  witness 432 

Land  of  deceased  —  not  proved  by  comparison 432 


INDEX.  475 

Handwriting  —  Comparison  —  Continued.  SEC. 

Witness. — Witness  —  voluntary  attestation 433 

proof  of  signature  —  rule  in  New  York  and  Massachusetts 436,  437 

one  witness  to  prove  handwriting  of  another 436 

proof  handwriting  of  the  obligor 436 

proof  witness  and  obligor 440 

proof  of  mark  —  rule  in  England 440 

disputed  writing  —  rule  in  Alabama  . .  441 

specimen  not  to  be  given  to  the  jury 441 

proof  of  writing  —  limited  knowledge 446 

no  degree  in  secondary  evidence 447 

no  reason  for  the  rule  in  England 447 

attesting  witness  proving  his  own  handwriting 455 

on  comparison  —  believed  they  were  his 455 

his  statement  received  in  evidence 455 

means  of  knowing  handwriting 455,  478,  479 

when  a  witness  is  competent 455 

comparison  to  test  the  witness 455 

Experts. —  Comparison  —  rule  in  Massachusetts 386 

genuineness  of  signature  to  note 386,  408 

opinion  of  writing-master 386 

when  called,  and  for  what  purpose 392 

to  decide  upon  the  genuineness  of  documents 392 

to  compare  and  give  their  opinion 392 

how  far  comparison  of  hands  is  evidence „ 395 

post-office  clerk  — inspector  of  franks  —  rejected 395 

expert  testimony  —  question  of  identity 415 

what  qualifies  one  to  give  an  opinion , 415 

opinion  based  upon  knowledge 415 

its  value  estimated  by  the  jury 415 

Skilled  witness. —  Non-expert  witness 479 

knowledge  of  handwriting , 385 

writing  —  witness  —  cashier  of  bank 443 

weight  of  evidence  —  skill ... 443 

superior  knowledge  —  experience 443 

by  expert  bank  officers 464 

knowledge  acquired  from  occupation 464 

post-office  clerk  —  detective  of  forgeries 471 

from  comparison  —  testimony  rejected 471 

comparison  of  signature  —  photograph  —  rule  in  Maryland 894 

Photographs. — Rule  in  the  Tichborne  case 394,  n. 

photographs  —  when  admitted  in  evidence 394 

when  copies  made  —  proof  of  good  copies .  394 

Forgery. — In  forgery  or  counterfeiting  — bank  —  officers 400,  457 

teller  may  prove  their  signatures 400 

in  forgery  —  who  may  prove 400,  470 

existence  of  bank  —  proved  by  reputation 400 

promissory  note  —  forgery  —  identity 408 

proof  of  forgery  —  rule  in  New  York 408,  466 

alleged  maker  dead  —  expert  testimony 408 


476  INDEX. 

Handwriting  —  Comparison  —  Continued.  SEC  . 

Forgery, — Indorser  on  note  —  alleged  forgery 413 

for  goods  sold  and  delivered 413 

signed  before  filling  upon 413 

when  jury  may  compare 413 

signature  —  alleged  forgery  of  note 418 

proof  by  teller  of  tlie  bank 418 

giving  nature  of  handwriting 418 

land  contract  —  receipt  forged 423 

ejectment  in  Pennsylvania 423 

alleged  forgery  of  receipt  for  partial  payment 423 

opinion  evidence  rejected 423 

forgery —  officers  of  bank  —  called  to  testify 467 

alleged  forgery  of  bill  of  exchange 397,  472 

inspector  of  franks  in  post-office 472 

Peerage. — Claim  to  ancient  peerage  —  signature  —  evidence 385 

knowledge  of  handwriting 385 

Will. — In  the  execution  of  a  will 390 

will  —  codicil  —  forgery  —  act  of  1854 405 

the  validity  of  the  codicil 405 

witness  to  will  —  proof  of  signature 435 

action  for  trespass  on  land 435 

handwriting  of  witness  to  will 435 

Promissory  notes. — Two  notes  —  suit  by  freed  woman 420 

alleged  maker  dead  —  suit 420 

defense  —  nudum  pactum  or  ex  turpi  contractu 420 

proof  of  letters,  by  plaintiff 420 

proof  of  consideration 420 

note  destroyed  —  receipt  —  signature  422 

receipt  passed  without  payment 422 

action  on  promissory  note  433 

attesting  without  being  requested , 433 

the  evidence  was  rejected 433 

proof  of  confession  of  signature  to  a  note 438 

admitted  in  a  New  York  case 438 

action  on  promissory  note 441 

following  English  precedent 441 

maker  of  note  —  partial  payment  —  limitations 445 

when  the  case  taken  out  of  the  statute 445 

promissory  note  —  identity  of  maker 452 

identity  of  subscribing  witness 453 

where  one  was  dead  and  the  other  absent 440,  453 

when  out  of  the  j  urisdiction 453,  n. 

where  witness  saw  the  note  executed 453,  n. 

does  not  identify  the  defendant 458,  n. 

to  prove  indorsement  —  had  seen  him  write 450,  n. 

opinion  —  similarity  of  writing .  .456,  n. 

on  note  —  comparison  allowed  in  Massachusetts 463 

Bill  of  exchange. — Acceptance  on  bill  of  exchange 384 

on  bill  —  letter  —  comparison 399 


INDEX.  477 

Handwriting  —  Comparison  —  •  Continued.  SBC 

Bitt  of  exchange. — Order  to  send  three  yards  of  cloth .  399 

action  by  payee  against  acceptor 446 

witness  saw  defendant  write  once  before 446    447 

held  to  be  insufficient 446 

bill  —  acceptance  —  handwriting ,  . .   451 

handwriting  of  acceptor    451 

dispute  as  to  identity  of  the  person 451 

Common  law. —  Does  not  permit  comparison. 430 

what  is  the  common-law  rule 431 

assumpsit  on  promissory  note 431 

proof  of  defendant's  handwriting 431 

modern  cases  broke  in  upon  the  strictness 431 

action  to  recover  value  of  timber 391 

New  York  followed  English  precedents 391 

best  evidence  —  nisiprius  practice 407 

transfer  of  bank  stock 407 

parol  evidence  rejected 407 

as  to  proof  of  lease  —  parol 407,  410 

though  there  be  a  written  agreement 407 

when  the  instrument  is  lost 407 

Civil  law. —  Civil  law  rule  as  to  comparison 430 

what  is  the  best  evidence  of  signature 430 

not  necessary  to  call  a  subscribing  witness 430 

proof  by  other  witnesses 430 

civil  law  permits  comparison 430 

Deed. —  Name  —  deed  —  widow's  dower  in  land 403 

action  to  foreclose  mortgage 403 

name  in  which  title  is  acquired 403,  414 

name  in  deed  —  presumption 404 

infant  grantee,  and  his  father  —  presumption 404 

ejectment  —  deed  —  marriage  —  signature 425 

plaintiffs  —  widow  and  son  of  former  owner 425 

validity  of  marriage  of  plaintiff  and  deceased 425 

depositions  taken  abroad 425 

deed  thirty  years  old — proves  itself 428 

proof  of  unregistered  deed 439 

prevailing  rule  as  to  secondary  evidence 439 

conveyance  of  land  to  judgment  creditor. 439 

interested  witness  —  when  rejected 439 

proof  of  signature  —  rule  in  New  Hampshire 440 

documents  offered  in  evidence 477 

libel — book  entries  —  comparison... 387 

Signature. —  Opinion  of  writing-masters 386 

plea  of  "  not  guilty  " —  rule  in  England 387 

production  of  books  in  court 387 

information  —  libel —  letters  —  evidence  395 

degrees — various  kinds  of  evidence 392 

comparison  by  jury  —  papers  taken  to  jury  room 393 

on  policy  of  insurance 393 


478  INDEX. 

Handwriting  —  Comparison — Continued.  SEC. 

Signature. — Jury  to  compare  during  trial 393 

when  opinion  derived  only  from  comparison ...     394 

having  received  letters  from  the  person 394 

proof  of  spelling  words 394,    n. 

ejectment  —  proof  of  will 398 

when  the  jury  may  compare 398 

the  signature  must  be  proved 402 

promise  to  pay  reduced  to  writing. 405 

bill  single  —  official  bond     413 

bank  check  discounted 419 

on  one  bank  passed  to  the  credit  of  another 419 

comparison  not  allowed 419 

where  witness  saw  one  or  more  letters 429 

may  prove  handwriting 439 

draft  —  proof  of  letters 444 

sold  to  broker  —  authority  by  letter 444 

warrant  of  attorney  —  signature 472 

libel  —  signature  —  expert  testimony 473,  474 

handwriting  of  the  defendant 473 

cashier  of  bank  who  never  saw  the  party  write 473 

held  to  be  a  competent  witness 473 

handwriting  shown  to  the  jury. 410 

witness  saw  him  write  once  —  is  competent 410 

witness  permitted  to  give  an  opinion 468 

genuineness  to  be  shown  by  the  evidence 469 

comparison  of  signature  —  American  rule. ..   458 

Hearsay. 

Tradition. —  When  receivable  in  evidence 804 

See  ANCIENT  RECORDS  AND  DOCUMENTS. 

Heirship. 

Claim. —  Proof  of  claim  to  land 110,     n. 

name  —  person  —  presumption Ill 

identity  from  name Ill 

handwriting  —  letters  —  receipts 118 

instruments  —  ancient   documents 118 

and  pedigree  —  proof  of.    . .   114 

assessment  of  damages 225 

opinion  as  to  measure  of 225 

persons  claiming  to  be  heirs 297 

dentity  of  devisee  — evidence  of  heirship ....  299 

question  of  relationship  —  rule  in  Kentucky  299 

parents  killed  on  railroad  —  identity  of  heirs 300 

papers  in  possession  of  deceased 300 

declarations  of  members  of  the  family 805 

legacy  to  child  —  what  proof  necessary 306 

church  records — evidence  of  pedigree 309 


INDEX.  479 

Highway.  SEC. 

View  of. —  Obstruction  —  photographic  view  of 157 

injuries  caused  by  defect  in 158 

photographed  —  good  representation 162 

telegraph   company  obstructing 169 

photographic  view  —  rule  in  England 169 

opinion  as  to  nuisance 212 

objects  calculated  to  frighten  horses , .  212 

as  to  when  a  horse  is  frightened 212 

Hoag. 

John. —  Parker  prosecuted  for  Hoag's  crime 5,  620,    n. 

matter  of  mistaken  identity 5,  620,     n. 

Hog. 

Larceny  of. —  Larceny  —  identity  of  hog  and  accused 29 

See  LARCENY;  ANIMALS. 

Horse. 

Mortgage.  —  In  chattel  mortgage  —  identity 24,  25,  526 

two  mortgages  on  one  horse. 526 

one  mortgage  on  two  mules 525 

identity  of  the  property 527,  528 

Identity.  —  Seen  at  night  by  flash  of  a  pistol 59 

opinion  as  to  his  being  safe  and  gentle  212 

objects  calculated  to  frighten  horses 212 

as  to  when  a  horse  is  frightened 212 

opinion  as  to  wagon  tracks  —  identity 217 

murder  case  —  rode  by  slayer 234 

Larceny. —  Larceny  of  a  black  horse 217 

stolen  —  identity  —  rule  in  Texas 556 

I. 

Identity. 

Generally. —  Of  persons  and  things 1,2,  183 

of  persons  living  and  dead  . .  .1,  183 

dead  bodies  — identity  of 15,  16,  159,  167,  168,  235,  249,  256,  276 

personal  identity  — of  the  living 40,  42,  43,  45,  47,  49,  52,  56,  59,     63 

identity  of  real  property  —  land 18,  21,  102,  113,  116,  424,  435,  480,  484 

description  of  personal  property 23,  30,  524,  525,  526,  537,  530,  531 

courts  will  not  presume  identity , 128 

it  is  a  question  of  fact  for  the  jury 128 

circumstantial  evidence  of 231 

of  deceased  and  accused 232,  252,  284,286,  626 

name  alone  is  not  sufficient 53,  54,  77,  79,  86,     98 

evidence  of  —  exception  to  general  rule 125,  126,  179,  180 

of  pilot  —  collision  of  vessel 349 

by  the  voice  of  person 13,  35,  88,  222,  553,  554 

by  photographs— of  persons 12,  157,  158,  159,  160,  173,  174,    n. 


480  INDEX. 

Identity  —  Continued.  SEC. 

Generally.—  By  the  clothing  —  of  the  dead..  10,  146,  148,  149,  150,  263,  266,  280 

by  the  tracks  of  the  accused 9,  143,  144,  148,  187,  217,  263,  277 

by  the  teeth  of  the  dead 17,  61,  235,  247,  250,  253,  255,  256,  257 

Idem  Sonans. 

Names. —  Names  and  words  of  same  sounds 77 

general  rule  on  the  subject 77 

several  examples  given 77,  78 

misnomer  —  abbreviation  —  recognizance , 78 

further  examples  given 77,  78 

names  that  sound  alike 90 

names  that  are  the  same 96 

names  in  actions  —  rule  in  England 106 

application  of  the  rule  —  idem  sonans 133 

the  spelling  may  not  be  fatal 133 

if  the  sound  is  retained 133 

names  that  are  not  —  examples  given 86 

Indictments. — Charging  crimes  and  misdemeanors 79 

junior  is  no  part  of  the  name 79 

name  in  larceny  —  "  Malay  " —  not  "  Mealy  " 88 

indictment  for  adultery 90 

indictment  and  verdict 95 

assault  and  battery  —  intent  to  kill 95 

same  —  assault  and  battery 96 

name  —  material  variance 134 

name  of  the  owner  of  stolen  property 134 

in  case  of  murder  —  spelling  name  134 

name  of  the  deceased  to  be  proved , 134 

murder  —  name  of  deceased  —  rule 135 

"  Boredet "  for  "  Burdet,"  deceased 135 

held  to  be  idem  sonans 135 

variant  orthography  in  name 186 

"  Fraude  "  spelled  "  Freude  "  —  fatal  variance 136 

a  question  of  fact  for  the  jury 186 

larceny  —  name  of  owner— jeopardy 88,137 

"  H.  Frank  "  for  "  H.  Franks  "—  fatal 187 

retailing  liquor  —  name  of  vendee 188 

"  Qeesler  "  for  "  Qeissler" — immaterial 138 

not  same  —  "  Miller  "  and  "  Millen  "  —  "  Wheeler  "  and  "  Whelen  ". . . .  138 

Words  —  verdict.  —  In  verdict  —  "  guity  "  f or  "  guilty  "—  fatal 74 

"  Butinge  "  for  "  shooting  "  —  valid  in  Louisiana 95 

"  tunn  "  for  "  term  " — idem  sonans 104 

and  BO  "  deth  "  for  "  death  " —  valid 104 

but "  impunitive  "  for  "  punitive  "  —  void 105 

murder  —  guilty  in  the  "fist"  degree 138 

held  to  be  material  and  void 133 

Judgments. —  Name  —  in  the  entry  of  judgments 133 

notice  of  judgment  liens  on  land 133,  298 


INDEX.  481 

Idem  Sonans  —  Continued.  SEC. 

Judgments. — As  to  middle  name  or  letter 133 

"  Mathew  "  and  "  Mather  "  —  not  idem  sonans 313 

name  —  when  idemsonans ,  298 

a  question  of  fact  for  the  jury 298 

•'  Bubb  "  for  "  Bobb  "  held  sufficient 317 

in  German  "  Pott "  pronounced  "  Putt " 317 

several  judgments  against  one  man  —  different  names 318 

"  Joest,"  "  Yoest," — "  Yeust," — "  Yosst " —  valid 318 

requirements  in  the  indexing 321,  322,  323,  324 

Election  cases. —  In  contested  election  cases 129 

written  ballots  for  candidates 129 

evidence  deftors  the  ballot 129 

matters  of  public  notoriety 129 

rule  in  several  States  130 

"  Finegan  "  for  "  Finnegan  " —  idem  sonant 130 

for  county  treasurer  —  rule  in  Illinois 130 

mistake  in  names  of  candidates 130 

same  name  —  wrong  initials 130 

Hubbard  spelled  in  four  styles 131 

"H.  F.  Yates  "  intended  for  "  Henry  F.  Yates" 131 

Ely  and  Carpenter  —  many  wrong  initials  for  both. 131 

"  H.  J.  Higgins  "  for  "  Henry  F.  Higgins  " 132 

growing  importance  of  the  doctrine 139 

substance  rather  than  form 139 

Indictment. 

Identity. —  Identity  of  the  accused  —  onus  on  the  prosecution 123 

variance  —  record  and  process 50 

name  —  fatal  variance 153 

person  assaulted  —  "  Melville  "  for  "  Melvin  " 153 

"  Clements  Turner  "  for  "  Turner  Clements  " 153 

alleged  killing  ' '  Robert  Kain,"  proof  "  Kain,"  fatal 258 

killing  "  William  R.  Morris,"  proof  "  W.  R.  Morris,"  good 259 

as  to  "  Reder  "  and  "  Redus"  known  as  both 260 

"  Hubles"  for  "  Hubbies  "  held  sufficient 260 

for  retailing  beer  —  name  of  vendee 404 

five  indictments  against  an  innocent  young  man 619 

case  of  mistaken  identity 619 

against  telegraph  company  —  obstructing  highway_ 169 

photographic  view  —  rule  in  England 169 

for  adultery  with  father  or  son  —  same  name 189 

father  presumed  to  be  the  man 189 

See  MURDER;  ARSON;  BURGLARY;  ROBBERY;  LARCENY. 

Infanticide. 

What  amounts  to  the  crime 282 

When  can  the  crime  be  committed 282 

61 


482  INDEX. 

Inspection.        ,  SEC. 

By  jury. —  Of  premises  by  the  jury 58 

in  civil  causes  —  in  England  and  America 582 

visiting  the  scene  of  a  homicide 583,  585 

in  case  of  burglary 584 

when  and  how  permitted 585,  592 

burglary  —  rule  in  Louisiana 586 

of  a  railroad  bridge  —  wreck 589 

in  an  action  for  damages 589 

ancient  and  modern  rules 591 

of  premises  —  in  actions  of  ejectment 592 

In  court. —  Clothing  of  deceased  identified 146 

clothing  and  rug  —  exhibited  to  jury 147 

coat  and  pants  of  deceased 148 

case  of  assassination  —  rule  in  Texas 148 

coat,  overcoat,  pants,  vest  and  hat 149 

of  person  —  by  the  jury  —  injured  parts 593 

examination  for  personal  identity 593 

when  necessary  to  examine 594 

when  the  court  will  not  compel 593 

discussion  of  the  subject  —  two  views 606 

Intoxication. 

Where. —  Opinion  evidence  as  to 195 

intoxication  and  insanity 227 

opinion  as  to  —  in  trial  for  murder 228 

J. 

Jeopardy. 

Former  conviction  —  robbery  —  burglary 636 

Former  conviction  or  acquittal 56,  636 

What  amounts  to  jeopardy 636,     n. 

Counterfeiting  —  former  judgment  —  identity 637 

Rule  in  civil  practice 637,     n. 

Judgments. 

Names. —  Of  parties  —  idem  sonans 817 

names  of  parties  to  judgments 317 

entering  on  docket  and  index 317 

same  —  judgment  liens  on  real  estate 318 

"  Bubb"  and  "Bobb"  in  German  —  idem  sonans 817 

pronounce  the  name  like  he  who  owns  it 317 

names  that  are  sounded  alike 318 

four  judgments  against  one  man 818 

spelled  "  Joest,"  "  Yoest,"  "Yeust"  and  "  Josstt" 318 

all  German,  and  idem  sonans 818 

defective  entry  —  effect  —  notice 819 

names  of  members  of  a  firm 319 

Liens, —  Purchasers  and  incumbrancers 320 


INDEX.  483 

Judgments  —  Continued.  SEC  . 

Liens. — What  isasufficient  notice '. 320 

indexing — when  not  docketing 321 

firm  of  partners  in  trade 321 

sale  of  land  by  judgment  debtor 321,  322 

same  —  index  —  rule  in  Nebraska 322 

when  purchaser  put  on  inquiry 322 

when  that  may  be  sufficient 322 

name  of  defendant  —  rule  in  Texas 323 

registration  of  abstract  of  judgment 323 

should  describe  the  judgment 323 

defective  description  of  defendants 323 

same  —  rule  in  Iowa 324 

constructive  notice  of  lien  324 

name  misspelled  —  fraudulent  purchaser 325 

when  it  operates  as  a  lien 325 

entry  on  docket  —  when  the  lien  attaches 326 

when  the  docket  makes  the  judgment  a  lien 326 

name  when  different  in  sound 324 

"Helen"  and  "  Ellen  " — not  idem  sonans 324 

nor  "Mathew"  and  "Mather" 313 

nor  "Miller  "and  "  Mill  en  "—"  Wheeler  "  and  "Whelen" 138 

Junior. 

Addition. — Is  no  part  of  a  person's  name 79 

when  father  and  son  same  name 122 

father  presumed  to  be  the  one  named 122 

deed  to  one  by  name  —  when  living  together 122 

presumption  in  favor  of  the  father 122 

charge  of  adultery  with  one  of  them 189 

presumption  in  favor  of  the  father 189 

Jurors. 

Misconduct. — Experimenting  measuring  tracks 9 

held  to  be  improper 9 

Inspection. — Of  premises  —  by  the  jury 58 

in  civil  cases  in  England 582 

visiting  the  scene  of  a  homicide 583,  585 

same  —  scene  of  a  burglary 584,  586 

examining  clothing  of  deceased 10,  146,  147,  148,  149 

inspecting  goods  for  identity 573 

necessity  of  examining  articles 578 

examining  liquor  —  excisable  brandy 577 

inspecting  a  dog  in  court 574,  575 

See  HANDWBITING — COMPABISON. 

K. 

Knife. 

Weapon.—  Killing  with  a  dirk-knife 231,  n.,  269 

murder  of  a  young  woman  with  a  knife  in  England 279 


484  INDEX. 

Knife  —  Continued.  SEO 

Weapon. — Was  convicted  and  executed  —  confessed 279 

death  by  cutting  with  a  knife 154 

borrowed  a  short  time  before  a  homicide 154 

preparing  for  an  assault «....   154 

Knowledge. 

Acquired. — Conception  —  only  through  the  five  senses 647 

of  handwriting  —  means  of  knowing    385,  464 

when  tested  by  comparison , , , , , , , ,   , , ,  409 

Ii. 

Land. 

Identity. — Description  — means  of  identity 18,  19,  480 

numbers  —  metes  and  bounds  —  courses  and  distances 1,  19,  480,  490 

certificate  —  deed  —  name 102 

to  two  persons  —  same  name 102 

when  last  one  to  be  void 102 

action  for  —  letter  and  receipt 113 

to  make  proof  of  handwriting 113 

claim  under  soldier  —  identity 114 

proof  of  pedigree . 114 

proof  of  execution  of  deed 116 

opinion  evidence  as  to  value  of 210 

contract  for  —  receipt  for  partial  payment 424 

action  for  trespass  on 435 

Riparian  rights. — Identity  —  boundaries  —  river 480 

lands  owned  by  different  parties 480 

boundaries,  how  designated 480 

governed  by  description  in  deed 480 

bounded  by  a  pond  —  identity  of  the  pond 481 

by  the  bank  of  the  river 481 

what  is  meant  by  the  "bank  "? 481 

bounded  by  river  not  navigable 482 

grantee  takes  to  the  center  of  the  stream 482 

land  on  river,  surveyed  on  three  sides 482,  495 

makes  the  river  the  fourth  line 482 

bounded  by  any  stream  —  riparian  rights 491 

contract  between  riparian  possessors 491 

center  of  stream  —  dividing  line 491 

may  convey  the  soil  without  the  stream ....  491 

or  the  stream  without  the  soil 491 

cutting  ditch  for  mill-race 492 

in  middle  of  the  stream 492 

Description. — Two  descriptions  —  construction  of 483 

effect  to  be  given  to  intent 483 

when  one  correct,  one  erroneous  483 

erroneous  description  rejected 483 

description  —  rule  in  New  Hampshire ,484 


INDEX.  485 

Land  —  Continued.  SEC. 

Description. — Attempt  to  give  two  descriptions 484 

effect  given  to  the  correct  one 484 

located  by  monuments  —  parol  proof 484 

interpretation  in  the  light  of  facts 484 

when  the  title  to  pass  —  true  and  false  description 485 

false  rejected,  if  the  true  one  will  pass  the  title 485 

description  —  general  and  particular. 485 

fixed  and  visible  monuments  never  rejected 485 

courses  and  distances  yield  to  monuments  and  objects 485,  487 

monument  —  distances  —  location^of  street 486 

boundaries  of  a  street 486 

when  true  intent  plainly  ascertained 487 

construction  of  deeds  —  identity  of  lands 488 

identity  of  what  the  parties  really  intended 488 

description  —  rule  in  California 489 

doubts  solved  in  favor  of  the  grantee 489 

where  there  is  an  ambiguity  489 

parol  evidence  received  489 

identity  —  by  metes  and  bounds 490 

explanation  of  call  in  a  deed 490 

extrinsic  evidence  admissible 490 

identity  —  deed  of  mining  land 490,     n. 

boundary  line  —  monuments  and  objects 493 

bounded  on  or  along  the  banks  of  a  stream 493 

by  a  house,  mill  or  wharf 493 

same  —  identity  —  extrinsic  evidence 494 

particular  name  or  number  sufficient 494,  495 

fire  insurance  —  ejectment  —  description 496 

identity  of  property  insured 496 

construction  of  deed  in  California 496 

description  sufficient,  where  land  can  be  identified 497 

ejectment  —  description  —  variance 497 

by  metes  and  bounds  —  feet 497 

construction  of  description 498 

calls  referring  to  a  creek  —  uncertainty 498 

conveyance  referring  to  another  deed 498 

what  is  sufficient  identification 500 

of  town  lots  —  uncertainty 500 

survey —  difficulty  in  identifying  land 501 

calls  in  deeds  —  difficult 501 

testimony  of  surveyor  as  to  points 501 

when  indefinite  as  to  course  and  distance 501 

calls  should  be  made  to  harmonize 501 

one  hundred  and  sixty  acres —  part  of  a  large  tract 494 

grantee  had  the  right  to  locate  it 494 

when  plan  lost  —  identity  of  land 502 

town  lots  conveyed  —  grantor  dead 502 

deed  fifty  years  old  —  identity  of  grantor 503 

question  of  fact  for  the  jury 503 


486  INDEX. 

Land  —  Continued.  SEC  . 

Description. — Ambiguity  oral  testimony 504 

when  the  conveyance  fails  to  identify 504 

jury  to  ascertain  the  meaning .     504 

identity  of  boundaries  —  rule  in  Maine 505,  520 

what  are  the  boundaries  —  question  of  law. 505 

where  are  the  boundaries  —  question  of  fact 505 

identity  of  a  monument  found 505,  506 

call  for  old  lines  —  question  for  the  jury 507 

"  Red  House  tract,"  identity  of 507 

description  in  tax  deed 508 

must  comply  with  the  statute  ....   508 

land  sold  for  tax  —  to  be  identified 509 

by  some  pertinent  description 509,  522 

lands  patented  —  mistake  in  jurisdiction 512 

where  error  will  not  lie  to  State  court 512 

deed  —  alleged  forgery  —  rule  in  Vermont 514 

acknowledgment  of  deeds 514,  515,  516,  517 

identity  of  lands  —  mistake  in  number 518 

bill  to  foreclose  —  chain  of  title 518 

misdescription  in  decree  —  resale  523 

calls  in  deed  —  what  intended  by 519 

description  uncertain  —  parol  evidence, .,,,,., , ,   ,,,,,,,,,..  521 

Larceny, 

Cattle.—  Stealing  cattle  in  Texas 29,  30,  549 

of  a  red  bull  yearling 88 

must  identify  property,  accused  and  owner 550,  570 

owner's  name  as  laid  in  the  indictment 570 

must  be  the  property  of  another 570 

extent  of  ownership  —  possession 571 

of  cattle  —  brand  —  identity 549 

of  cow  —  identity  of  accused  cow 552 

Money.—  Larceny  of  a  package  of  money 71 

circumstantial  evidence  of  guilt 71 

of  paper  money  —  presumption 566 

actual  production  dispensed  with 566 

what  necessary  to  prove  identity  in 69 

robbery  of  —  identity  of  accused 244 

Fruit. —  Identified  by  impressions  of  the  teeth 61 

prints  of  teeth  on  rinds  of  fruit 61 

Goods.  —  From  store  —  rolled  around  boards 61 

prints  of  teeth  in  pulling  out  the  boards 61 

Grist. —  Miller's,  one  in  England,  one  in  America 557 

doubtful  identity  in  both  cases , 557 

Lease, 

Identity. —  In  writing  —  parol  evidence 407 

identity  of  signature 410 


INDEX.  487 

Life  Insurance.  SEC. 

Identity. —  Photograph  of  the  insured 164 

taken  two  weeks  before  application 164 

murder  of  insured  to  collect  policy 167 

photograph  of  deceased 167 

dead  body  found  in  the  woods 167 

Logs. 

Mortgaged. —  In  a  drive  not  separated 2,  537 

mortgage  void  for  want  of  identity 2,  537 

Lost  Child. 

Identity. —  Supposed  to  be  found  —  identified  by  marks 46 

claimed  by  two  women 46 

cause  of  marks  —  experts  disagreed 46 

uncle  executed  for  murder  of  niece 625 

niece  subsequently  returned  to  her  home 625 

M. 

Marks. 

As  evidence. —  And  scars  —  on  persons  —  peculiar 15 

as  evidence  of  personal  identity 255,     n. 

wound  inflicted  on  prisoner  by  deceased 281 

in  burglary  —  print  of  a  key 281 

where  the  prosecutrix  bit  the  robber's  finger 70 

in  murder  —  prisoner  compelled  to  show  tattoo  marks 605 

forced  to  identify  himself 605 

question  of  constitutional  right 605 

for  signature  —  proof  of  writing 440 

Married  Woman. 

Land. —  Deed  executed  of  land 103 

similarity  of  name  —  identity 108 

in  consideration  of  marriage 103 

deed  of  land  in  former  name 314 

Militia. 

Execution. —  Execution  in  the  wrong  name 83 

identity  of  the  proper  person 83 

Mistaken  Identity. 

Impostors. — Its  dangers  —  frequent  occurrence  —  remedy 3 

Martin  Querre's  case 613,  n.,  620,  n. 

the  Tichborne  case 613,  n. 

De  Caille's  case 616 

Cassali  —  absent  thirty  years  and  returned 617 

Singular  cases. —  In  England  and  America  618 

arrest  of  the  wrong  man  —  trespass 614 

same  —  rule  in  England 615 

when  the  defendant  might  plead  in  abatement 615 


488  INDEX. 

Mistaken  Identity  —  Continued.  SEC. 

Singular  cases. — False  personation  —  claiming  an  estate 616 

Govan  murder  —  mistake  all  through 621 

Hoag's  case  —  Parker  prosecuted 620,     n. 

guilty  escaped  —  innocent  suffered 620,     n. 

Pentonville  prison  case 622 

innocent  man  died  in  prison 622 

arrested  for  an  escaped  convict 622 

uncle  executed  for  the  murder  of  his  niece 625 

niece  returned  to  her  home . .     625 

Mrs.  McCaffrey's  case,  as  reported 620 

her  daughters  buried  another  woman 620 

mistake  of  a  negro  in  North  Carolina 618 

same  —  larceny  —  mistake 619 

mistake  for  another  —  five  indictments. 619 

trial  for  highway  robbery 619 

mistake  of  a  dead  body .622,     n. 

when  the  body  not  found 626 

grave  robbery  —  mistake  as  to  dead  body 627 

taking  dead  bodies  from  the  grave . 628 

debtor — bank  deposit  —  mistake 613 

mistake  among  policemen 628,     n. 

general  fight  —  dog  participates 628,     n. 

cases  collected  from  ancient  history 623,  624 

remarks  on  the  general  subject 620,     n. 

corpus  delicti  —  how  proved 626 

Money. 

Loaned. —  Borrowed  —  action  to  recover 410 

handwriting  shown  to  the  jury 410 

loaned  —  usury  —  letters  —  signature 424 

in  bank  —  equitable  owner 643 

Stolen.—  Larceny  of  a  package 71 

identity  of  the  thief 71 

when  the  prosecutrix  bit  the  robber's  finger 70 

robbery  of,  identity  of  accused 244 

of  gold  and  silver  in  the  night 244 

larceny  of  trunk  and  money 558 

metallic  money  —  difficult  to  identify 559 

game  —  currency  —  bank  notes  —  identity  of 560 

uttering  counterfeit  coin 561 

bank  notes  —  non-production  on  trial 568 

treasury  notes  —  instructions  as  to  identity 543 

bank  robbery  —  identity  by  the  voice 553 

Mortgage. 

Chattel. —  Two  on  one  horse 526 

one  on  two  mules 527 

description  of  the  property 627 

one  black  mule  in  Alabama 628 

See  PERSONAL  PBOPEBTY. 


INDEX.  489 

Murder.  SEC. 

Corpus  delicti. —  To  be  first  established     282 

there  can  be  no  conviction  without  it 232 

what  proof  necessary 232 

when  dead  body  not  recognized - 232 

when  body  destroyed  —  consumed  by  fire 232 

identity  of  deceased  —  New  York  statute 236 

requiring  proof  corpus  delicti 236 

what  proof  required  1 236 

proof  of  the  corpus  delicti 252 

destruction  of  the  dead  body 253 

Identity  of  deceased. —  Photographic  view  of 172 

killing  with  a  dirk  —  not  identified 231,     n. 

by  bones  and  shoes  —  after  twenty-three  years 235 

rule  as  to  identity  in  England 235 

identity  by  occupation  —  killed  the  barber 238 

name  of  deceased  not  proved 238 

when  the  evidence  does  not  identify 239 

deceased  should  be  identified  by  name 239,  258 

proof  by  surname  —  not  sufficient 239 

"  Taylor  "  is  not  "  Seth  Taylor  " '. 239 

head  of  a  murdered  man  identified 246 

picture  used  to  identify 246 

alibi  of  the  deceased 250 

identification  of  the  dead  body 252 

found  in  the  water  —  drowning , 255 

of  deceased  by  initials 259 

of  skeleton  and  window 264 

By  the  teeth. —  Webster's  trial  in  Boston 247 

identified  by  the  teeth  —  dentist 247,  250 

by  the  teeth  when  body  burnt 247,  253 

strictness  of  proof  corpus  delicti 253 

body  exhumed  three  times  —  teeth 256 

recognized  twenty-three  years  after  burial 17,  235 

peculiarity  of  the  teeth 255,  n. ,  256,  257 

photograph  of  two  dead  men 159 

Identity  of  accused. —  Circumstantial  evidence  of  identity 231,  286,  287 

killing  of  three  persons  at  once 230,    n. 

murder  of  a  whole  family 277 

personal  identity  of  prisoner  —  size 233 

identity  of  —  in  the  night-time ...   234 

seen  shortly  before  the  homicide 234 

carrying  something  under  his  coat 234 

By  blood. —  By  blood-stains  on  a  shirt 240 

blood  spots  on  clothing 172,  245 

same  —  on  boards  —  identified 262 

opinion  as  to  blood  spots  on  a  stone 199 

By  tracks. —  Mask  and  tracks  near  the  scene 263 

identity  of  the  prisoner  by  tracks 142,  143 

killing  a  young  woman  —  rule  in  England 279 

62 


490  INDEX. 

Murder  —  Continued.  SEC. 

By  tracks. — In  the  mud  near  scene  of  homicide 144 

mud  brought  into  court 144 

to  test  tracks  —  excluded 144 

boots  —  witness  thought  would  fit  them 187 

found  near  the  scene 217,  263,  277 

Voice. —  Cries  of  the  deceased  —  heard 37 

opinion  as  to  cause  of  cries 37 

Means. —  Slave  convicted  —  identified  by  his  pass 241 

lost  at  the  scene  of  the  murder 241 

by  one  of  two  or  more  persons 242 

if  uncertain  —  no  conviction , 242 

of  child  sixteen  months  old  —  mother  accused 245 

with  a  pistol  —  examined  by  the  jury 267 

with  a  dirk  knife ; . .  . .  269 

administering  poison  —  experts  disagree 237,  275 

with  a  gun  —  opinion  as  to  position  of  slayer 230 

indications  of  a  violent  death 273 

for  interest  in  an  estate 271,  272 

trial  of  the  Knapps 27& 

Govan  murder  —  guilty  one  escaped 621 

unfortunate  man  lost  his  life 621 

Iff. 

Name. 

Evidence  of  identity. —  When  name  is  evidence  of  identity 2,  99,  111,  117 

when  sufficient  —  rule  in  England 2,  53,  106 

when  presumptive  evidence 2,  111,  116 

of  administrator  —  rule  in  Georgia 2,  108,  110 

same  —  rule  in  England  and  Massachusetts 2,  106 

presumption  —  burden  of  proof 2,  99,  115,  122 

when  they  are  of  the  same  trade  or  profession 2,  109,  111 

when  the  transaction  is  remote 54 

In  deeds. —  Of  woman  before  and  after  marriage 54 

in  deed  —  presumption 56 

identity  of  name  —  person 99 

strict  proof  in  England  99 

when  evidence  of  identity , 99 

land  certificate  —  deed 102 

two  certificates  granted  to  same  name 102 

when  the  last  to  be  void 102 

in  chain  of  title  —  sufficient 108 

name  in  actions  —  rule  in  England 105 

when  presumptive  evidence  of  person 116 

identity  of  —  in  tracing  title 116,  n. 

father  and  son  same  name 122 

the  elder  presumed  to  be  referred  to 122 

but  this  is  a  mere  presumption 122 

deed  executed  by  O'Neil 122 


INDEX.  491 

Name  —  Continued.  SEC. 

Presumption. —  Execution  in  wrong  name 83 

of  indorser  on  note '.-.  ^ 98 

went  to  the  tavern  to  see  "  S." » 98 

saw  one  who  answered  to  that  name 98 

report  of  death  of  plaintiff 107 

what  proof  necessary 107 

identity  of  plaintiff  by  name 107 

identity  of  name  —  identity  of  person 109 

when  sufficient  presumptive  evidence 109 

of  person  —  presumption  of  identity Ill 

difficult  to  fix  a  rule Ill 

when  mere  name  not  sufficient Ill 

of  boys  in  court  —  malicious  mischief 112 

presumptive  proof  of  signature 115 

presumptive  identity  of  person 117 

when  sufficient  to  identify  the  person 117 

name  in  indictment  —  alias  added , 134 

courts  will  not  presume  identity 128 

it  is  a  fact  for  the  jury 128 

to  be  submitted  only  on  facts 128 

Description. —  Of  railroad  corporations 97 

junior  is  no  part  of  the  name 79,  118 

it  is  mere  description 79,  118 

the  law  knows  but  one  Christian  name 118 

misnomer  —  defective  orthography 84 

on  bond  —  as  surety 85 

middle  letter  —  immaterial  variance 118 

introduction  by  name  —  fraud 100 

Spelling. —  Names  of  candidates  in  elections 130 

evidence  dehors  the  ballot 129 

wrong  spelling  may  not  be  fatal 133 

when  the  sound  is  retained 133 

Idem  sonans. —  Application  of  the  rule  —  idem  sonans  100,  106 

names  that  are 77, 129,  130,  131,  132 

spelling  names  in  election  cases 129,  130,  131,  132 

Mistake. — Swindler  receiving  goods  in  name  of  another 119 

goods  delivered  to  wrong  man  —  same  name 120 

express  not  liable  for  the  mistake 120 

"  Clements  Turner  "  for  "  Turner  Clements  " 153 

bigamy  —  perjury  —  weight  of  evidence 55 

when  first  name  omitted 81 

Christian  name  —  initial  letter 80 

addition  — misnomer  —  surname 82 

"H.  Frank  "for  "H.  Franks"—  fatal 137 

o. 

Office. 

Contest  for. —  Mistake  in  ballots  cast 118 

name  of  candidates  in  contested  elections 129 


492  INDEX. 

Office  —  Continued.  SEC. 

Contest  for. — Name  written  on  ballots  129 

evidence  dehors  the  ballot 129 

as  to  the  spelling  of  names 130,  131,  132 

See  ELECTIONS  ;   IDEM  SON ANS. 

Opinion. 

Evidence. — Opinion  of  non-expert  witnesses 179 

exception  to  the  general  rule 126 

rule  as  to  expert  witnesses 179 

reason  for  the  exception 180 

statement  of  the  reason  for 126 

facts  on  which  opinion  is  based 180 

when  professional  skill  not  required 180 

Personal  identity. —  Age  of  person  from  appearance 181 

in  questions  of  identity 6,  7,  182 

necessity  for  relaxing  former  rule 184 

as  to  the  identity  of  persons 189,  226 

what  is  fact  ?  what  is  opinion  ? 213 

as  to  the  identity  of  a  murderer 219 

witness  having  knowledge  of  a  person 226,  n. 

three  persons  killed  at  once —  as  to  identity 230,  n. 

as  to  the  position  of  the  slayer 268 

nonexpert  evidence  admitted 268 

Values. —  Value  of  services  rendered 181,  195 

value  of  commodities  sold  and  delivered ....  181,  194 

as  to  the  value  of  horses 181,  191,  212 

of  a  gun  — a  dog 181,206,  207 

as  to  value  of  real  estate  —  rule 210 

Sanity. —  Sanity  or  insanity  of  accused 181 

sanity  in  a  will  case 181 

as  to  insanity  or  intoxication 195 

rule  in  Massachusetts 197 

insanity  or  intoxication 227 

as  to  intoxication  in  a  murder  case 228 

definition  of  dipsomania 227 

Health. —  Injuries  —  damages  —  physical  condition  —  before  and  after 181 

assault  and  battery —  as  to  pain  and  suffering 181,  193 

disease  of  slave  —  opinion  as  to 190 

symptoms  and  effect  of 190 

effect  of  drainage  on 187 

sin i ic  —  injuries —  rule  in  Kansas 191,  192 

caused  at  a  street  crossing 191 

Weather. — Cold  enough  to  freeze  potatoes 182,  n. .  208 

of  temperature  —  heat  or  cold  208 

to  freeze  potatoes  in  the  car 208 

bacon  hams  —  injury  by  heat 208 

Streets. —  As  to  defect  in  street  crossing 181 

space  for  a  two-horse  wagon  to  turn 181 


INDEX.  493 

Opinion  —  Continued.  SEC. 

Streets. — Opinion  as  to  culvert 182,  n. 

nuisance  —  pig-sty  on  premises 182 

injury  caused  at  street  crossing 191 

as  to  whether  the  street  was  dangerous 191 

whether  a  railroad  could  be  properly  fenced  in 194 

as  to  safety  of  sidewalk 202 

as  to  the  capacity  of  a  sewer 214 

whether  it  would  carry  off  the  water 214 

As  to  affections. —  In  breach  of  marriage  promise 188,  192 

whether  she  had  once  been  pregnant , 188 

as  to  affection  or  dislike 204 

rule  on  the  subject  —  knowledge 204 

in  breach  of  marriage  contract 216 

as  to  tender  attachment 216 

Of  horses. —  As  to  horse  being  safe  and  kind 212 

objects  calculated  to  frighten  horses 212 

of  nuisance  —  placing  stone  by  side  of  highway 212 

injuries  —  thrown  from  wagon  on  street 213 

whether  or  not  a  horse  was  frightened 213 

Photograph. —  Whether  a  good  likeness 181,  198 

Handwriting. —  As  to  evidence  of  writing 125 

points  of  difference  by  experts 125 

evidence  —  inference  or  conclusion 126 

Other  instances. —  Sufficiency  of  a  dam  on  a  stream 181 

speed  of  a  railroad  train  —  common  sense  —  not  science 182,  n.,  209 

as  to  danger  —  railroad  accident 186 

plaintiff's  elbow  out  the  window 186 

of  a  ditch  —  its  benefit  to  land 187 

as  to  water  power  —  photograph 198 

back  water  —  effect  on  wheel „ 198 

grading  a  railroad  —  hard  pan 203 

as  to  pauper's  legal  settlement 204 

as  to  solvency  or  insolvency 204 

in  case  of  trespass  and  covenant  , 211 

in  damages  —  when  not  received 211 

question  of  seaworthiness  —  vessel 211,  n. 

in  larceny  —  as  to  wagon  tracks 217 

murder  trial  —  as  to  hairs  on  a  club  218 

vessel  approaching  —  as  to  distance 221 

of  the  voice  of  a  burglar 222 

amount  of  stone  delivered,  under  contract 229 

number  of  stock  of  a  certain  brand,  in  a  range 229 

in  murder  —  as  to  the  position  of  the  slayer 230 

charge  of  incest  —  as  to  insanity 201 

as  to  a  pamphlet  published 185 

fire  insurance  —  danger  of  business 185 

as  to  the  color  of  liquor 181 

blood-spots  on  a  stone  —  murder 181 


494  INDEX. 

Orthography.  SEC. 

Defective. —  In  spelling  —  French  names 84 

generally  —  in  names  of  foreigners 84 

names  that  sound  alike 90 

rule  of  idem  sonans 90 

a  question  of  fact  for  the  jury 90,  n. 

words  within  the  rule  in  verdicts 104 

"  turm "  for  "  term,"  or  "  deth  "  for  " death "„ 104 

rames  in  election  cases 129,  130,  131,  132 

See  SPELLING;  IDEM  SONANS. 

Oxen. 

Mortgage. — In  chattel  mortgage  "  red,  white  and  blue  " 529 

one  Durham  bull  —  identified 26,  540,  n. 

Larceny. — Stealing  cattle  —  rule  in  Texas 29,  30,  549 

of  cattle  —  brand  —  identity 549 

ownership —  possession 571 

P. 

Patents. 

Identity. — Identity  —  rule  as  to 639 

infringement  of  —  rule  as  to 639,  642,  n. 

trial  of  patent  cases 640,  641 

identity  of  —  in  court 644,  645 

Pedigree. 

Proof  of.—  And  heirship  —  proof  of 114 

hearsay  —  to  prove  death 114 

pictures  and  inscriptions  —  evidence  of 165 

to  terminate  on  abeyance 165 

when  church  register  evidence  of 302 

declarations  of  members  of  the  family 305 

church  records  —  evidence  of 309 

ancient  wills  —  deeds  —  questions  of  pedigree 812 

Peerage. 

English. — Knowledge  of  signature 385 

knowledge  of  handwriting    385 

Personal  Identity. 

Evidence. — Difficulty  in  identifying  a  person .  2,  5 

dissimilarity  of  persons 40 

permanence  of  their  individuality 40 

identity  after  a  long  absence 40 

many  changes  in  personal  appearance 40 

means  of  recognition  of  person 40 

distinctive  features  —  difference 40 

illustrations  of  dissimilarity 40,  n. 

memory  of  features  —  discrimination , 44 


INDEX.  495 

Personal  Identity  —  Continued.  SEC. 

JEfoidence. — Retentive  memory  of  individuals 44 

uncertainty  of  personal  identity 48 

caution,  and  danger  of  over-abundant  caution 48 

comparison  of  persons  and  things 47 

coincidence  in  facts 47 

Rules. — Better  to  err  in  acquittal 48 

identity  of  ancestors  —  claim  of  land 52 

two  of  the  same  name 52 

rule  on  the  subject  in  Texas 51,  52,     53 

in  remote  transactions 54 

name  of  woman  before  and  after  marriage 54 

name  in  deed  —  presumption  of  identity 55,     56 

Means. — Size  and  appearance  of  persons 58,  59,     76 

opportunities  for  observing 58 

peculiarities  of  the  person 59 

identity  from  light  by  flash  of  a  gun 41 

cases  given  —  witnesses  testified  to  it 41 

doubtful  —  tests  and  experiments 41,    42 

tests  in  England  and  France 41,  42,     43 

testimony  of  prosecutor  —  shot  in  the  elbow 41 

later  English  case  42 

accused  shot  at  gate-keeper 42 

Actions. — Name  of  plaintiff —  rule  in  Kentucky 107 

report  of  death  —  what  proof  required 107 

identity  of  plaintiff  by  name 108 

not  presumed  —  is  a  fact  for  the  jury 110 

of  heirs  claiming  lands 110,     n. 

the  Berkley  Peerage  case 110,     n. 

malicious  mischief  —  boys  identified  in  court 112 

brought  to  the  bar  of  the  court 112 

degree  of  evidence  to  prove 123 

indictment  —  onus  on  the  prosecution 123 

in  bigamy  —  sufficient  proof 49 

divorce  in  England  —  confrontation  decree 50 

to  enforce  specific  performance  —  identity 51 

three  men  of  the  same  name 51 

bastard  children  in  evidence 62,  63,    65 

in  questions  involving  heirship 51 

in  burglary —  instruments  of  crime 45,     57 

retailing  —  identity  must  be  proved 76 

Personal  Property. 

Identity. —  Necessity  for  description 23 

what  required  in  description 524 

as  to  the  identity  of  the  chattels 524 

articles  —  goods  —  how  identified 561 

whether  in  or  out  of  court 562 

appearance  —  marks  or  brands 562 


4:96  INDEX. 

Personal  Property  —  Continued.  SEC. 

Identity. — Familiarity  with  the  subject-matter 526 

by  examination,  use  or  handling 562 

same  —  knowledge  or  opinion  —  reason 563 

uncertainty  in  identification 563 

same  —  articles  —  general  appearance 564,  565 

want  of  discrimination  —  danger  of  mistake 564 

opportunity  for,  and  attention  in  observing 564 

impression  —  information  —  reliability  564 

specific  property  —  coincidence 565 

two  claiming  the  same  property 565 

both  relying  upon  ,the  same  marks 565 

Chattel  mortgages. —  Description  of  property  in  mortgage 23 

identity  —  notice  to  third  persons 23 

defective  description  —  aided  by  inquiry 23,  526 

of  mules,  horses  and  oxen 24,  528,  530 

description  of  oxen,  "  red,  white  and  blue  " 24,  529 

what  description  is  sufficient 24,  25,  525 

animal  and  other  personalty  —  description 26,  528 

description  —  uncertainty  —  what  to  include 27 

logs  in  a  drive  not  described 27 

description  —  rule  in  Massachusetts 525 

included  carriage  —  though  not  mentioned 525 

two  mortgages  on  one  horse 526 

description  of  —  identification 526 

mortgage  on  two  brown  female  mules 527 

one  black  mule  —  rule  in  Alabama 528 

description  of  mare  —  constructive  notice 529 

four  white  legs  —  misdescription 529 

when  sufficient  to  put  parties  on  inquiry 529 

correct  description  in  part  —  when  sufficient 529 

the  question  of  identity  is  for  the  jury 530 

what  included  by  description 530 

identity  of  cattle  —  ages  —  rule  as  to  description 531 

when  incorrect  as  to  ages 531 

when  party  claiming  in  opposition  to  the  mortgage 531 

when  obscure,  vague,  indefinite  and  uncertain 531 

as  to  mislead  innocent  persons 531 

when  there  is  a  double  description  531 

one —  if  false,  may  be  rejected  ....  531 

should  enable  strangers  to  select 531,  n. 

Goods. —  Stock  of  goods  —  description  of 532 

now  in  store  —  schedule  annexed 532 

description  controls,  as  to  rights  of  parties 532 

same  —  description  of  goods  and  groceries 533 

goods  in  a  country  store 533 

same  —  articles  not  included 533 

misdescription  —  when  to  be  treated  as  surplusage 534 

goods  in  store  —  not  to  include  wagon  and  team 534 


INDEX.  497 

Personal  Property  —  Continued.  SEC. 

Chattels. —  Portable  steam  engine  —  uncertain  identity 535 

grist  and  saw-mill  on  plantation 535 

what  was  intended  to  be  included 535 

deed  in  trust  —  crop  of  cotton 536 

Crops. —  Being  cultivated  on  certain  lands 536 

misdescription  as  to  the  lands 536 

indefinite  mortgage — mixed  logs  —  wagon 537 

one  four-horse  iron  axle  wagon  —  indefinite 537 

logs  in  a  drive  —  not  separated  —  bad 537 

furniture  —  wheat  —  oxen 538 

a  ten-acre  field  of  growing  wheat 538 

when  void  for  uncertainty 538 

bad  description  of  furniture 539 

staves —  stock  and  chattels 539 

Personalty. —  Staves  —  wrong  location  —  yet  valid 539 

goods  mortgaged  —  there  attached 539 

chattel  mortgage  on  goods  in  shop 540 

valid  —  though  removed  to  another  place 540 

tools  and  materials  in  shop 540 

identity  of  a  Durham  bull 540,  n. 

valid  —  when  aided  by  inquiry 540,  n. 

Larceny. —  Cattle  stolen  —  marks  and  brands 541 

Cattle. —  Stealing  beef  steers  —  rule  in  Texas 541 

a  steer  — identified  by  brands 29,  30,  541,  549 

larceny  of  a  hog  —  identity  of  accused  and  hog 29,  542 

evidence  of  supposed  accomplice 542 

a  steer  —  the  property  of  Slaytor 29,  549 

received  from  another  —  question  of  knowledge 549 

held  to  a  fatal  variance 549 

a  bull  —  wrong  name  of  owner 550 

cattle  and  horses  —  possession  —  identity 550 

name  of  owner  to  be  proved  as  laid 550 

stolen  cow  —  identity  of  accused 30,  32,  552 

must  identify  the  thief  as  well  as  the  cow 552 

cow  identified  —  thief  not 552 

loose  manner  of  identifying 568 

conclusion  without  sufficient  facts 568 

swift  identifying  witness 568 

identity  of  property  and  owner 570 

must  be  proved  as  laid  in  the  indictment 570 

must  be  the  property  of  another 570 

extent  of  property  in  the  goods 571,  573 

coupled  with  possession  572 

name  of  owner  —  middle  letter. ...  572 

Chattels. —  Identity  of  stolen  goods  and  box 551 

brought  into  court  —  identified  before  the  jury 551 

horse  thief  —  identity  —  rule  in  Texas 556 

by  millers  —  English  and  American — 557 

63 


498  INDEX. 

Personal  Property  —  Continued.  SBC. 

Chattels. — Doubtful  identity  in  both  cases 557 

Horse. —  Possession  of  horse  —  variance 547 

name  of  owner  must  be  proved 547 

Money. —  Larceny  of  trunk  and  money 30,  558 

identity  of  the  money ,  558 

by  circumstantial  evidence 558 

of  treasury  notes  —  instructions  as  to  identity 543 

instructions  as  to  weight  of  evidence 543 

of  paper  money  —  production  dispensed  with ' 566 

possession  of  similar  bills 5(56 

similar  in  amounts  and  denominations 566 

if  defendant  usually  destitute  of  money. . 566 

qualification  as  to  recent  possession 566,  n. 

when  called  on  to  account  for 566,  n. 

money  —  metallic  —  difficult  to  identify , 559 

similarity  —  same  denomination 559 

currency  —  bank  notes  —  identity  of 560 

counterfeiting  —  indictment 560 

bank  notes  —  non-production 568 

parol  testimony  of  contents  of 568 

mistaken  identity  of  goods 567 

marks  on  cask  —  misleading 567 

Robbery. —  Bank  robbery  —  identity  by  the  voice 553 

identity  of  —  evidence  of  an  accomplice 548 

testimony  against  confederate 548 

on  the  highway  in  England 548 

robbery  of  money  and  watch 545 

identity  of  —  rule  in  England 545 

Burglary. —  Evidence  of  identity  —  rule  in  Iowa •. .  555 

by  circumstantial  evidence 555 

burglar's  tools — evidence  of  identity 577 

where  carriage  heard  near  the  house 546 

identity  of  the  accused 128 

mistaken  identity  as  to 45 

identity  on  second  conviction 141 

Receiving  stolen  goods. —  Braes  couplings  for  hose  544 

when  not  fully  identified 544 

description  of  clothing  stolen  from  store 569 

non-production  of  the  goods 569 

found  where  accused  placed  them 569 

directed  to  them  by  confession 569 

admission  of  doubtful  testimony 569 

Goods  in  court. —  For  identity  —  when  safe  and  convenient 573 

machine  in  court  for  inspection 574,  575 

portable  chattels  in  court  —  rule  in  England. 576 

view  by  jury  —  under  English  statute 576,  n. 

inspection  of  goods  in  court 577 

obscene  pictures  inspected*; 577 

burglar's  tools  and  stolen  goods 577 


INDEX.  499 

Personal  Property  —  Continued.  SEC. 

Goods  in  court. — Comparison  of  articles  —  in  and  out  of  court 578 

necessity  of  examining  articles 678 

damages  — machine  in  court  to  identify 579 

dog  in  court  for  identity  —  witness 574 

plaintiff  permitted  to  call  the  dog 574,  575 

liquor  in  court  —  excisable  brandy  —  evidence 577 

Mr.  Sanders  drank  up  all  the  evidence 577 

belief  of  facts  according  to  evidence 580 

Photographs. 

Premises. —  Of  premises  —  when  admissible 157 

damages  to  premises  —  condition  of 157 

telegraph  company  —  obstructing  highway 157 

nature  of  the  locus  in  quo 157 

action  against  highway  for  injuries 158 

preliminary  question  decided  by  judge  158 

his  decision  not  subject  to  exceptions 158 

opinion  as  to  good  likeness 198 

no  expert  necessary 198 

obscene  pictures  for  sale 590 

action  for  —  rule  in  New  York 590 

patent  —  camera  —  invention 642 

Persons  living. —  Use  of,  in  murder  trials 12 

two  pictures  of  one  child 12 

in  cases  of  burglary  and  murder ...  159 

in  case  of  bigamy  —  identity 161 

proof  of  correctness  thereof 173 

same  —  rule  as  to  proof  of 174 

need  not  produce  the  artist 174 

now  in  common  use  in  the  courts 174 

when  admitted  and  for  what  purpose  394 

to  show  state  of  health  —  life  insurance 12 

Dead  bodies. —  Pictures  of  two  dead  men 159 

for  identification  of  dead  bodies . , 159 

widow  —  identity  of  dead  husband 160 

likeness  of  the  murdered  man  exhibited 160 

blood-stains  on  coat  of  deceased 172 

to  identify  the  head  of  a  murdered  man 246 

Handwriting. —  Proof  of  handwriting  —  copy  of  records 12,  172,  173 

copies  of  instrument  sued  on 173 

of  papers  to  attach  to  interrogatories 173 

damages  —  raising  steamboat 174,  n. 

test  of  genuine  handwriting 175 

alleged  alteration  of  check 176 

land  grant  —  signature  —  copy 178 

signature  of  subscribing  witness 352 

as  evidence  of  handwriting 394 

used  for  examining  bread 177 


500  INDEX. 

Pictures.  SEC. 

Photographs.—  Of  premises  and  dead  bodies 157,  158,  159,  590,  643 

of  the  living  —  of  handwriting 12,  157,  160,  173,  176,  178,  352 

Pistol. 

Weapon. —  Flash  —  light  —  saw  the  robber's  horse 59 

sheriff  discharged  —  improper  test , 155 

weapon  used  in  homicide  —  examined  by  jury 267 

its  appearance  immediately  after  fight 267 

experiment  by  firing  it 267 

See  MTJKDEK;  WEAPON. 

Prisoner. 

Identity  o/.^Second  conviction  of  robbery 140 

same  —  under  English  statute 140 

previously  convicted  of  felony 140 

same  —  house-breaking 141 

what  evidence  necessary 141 

By  tracks. — Prisoner  identified  by  tracks , 142 

gun  shot  —  assassination  —  rule  in  Texas 142 

deceased  laboring  on  railroad  track 142 

tracks  in  the  woods  —  and  horse  tracks 142 

facts  known  to  jurors,  and  not  developed 143,     n. 

footprints  —  identity  —  rule  in  California 143 

found  near  scene  of  homicide 143 

conflicting  testimony  as  to  143 

tracks  in  the  mud  —  rule  in  Tennessee 144 

mud  brought  into  court  to  test  tracks  — excluded 144 

jurors  examining  tracks  —  experimenting 145 

experimenting  with  an  old  shoe 145 

held  to  be  improper  conduct 145 

to  establish  the  fact  of  murder  277 

murder  of  a  whole  family - 277 

Weapons. — Comparison  of  weapons • 155 

in  possession  before  the  killing 155 

when  prisoner  and  deceased  lived  as  man  and  wife 155 

theory  of  accidental  killing 155 

blood-stains  on  a  stick 150 

instruments  used  by  criminals 

connecting  prisoner  with  the  transaction 60 

death  by  cutting  with  a  knife 154 

Anarchists'  case  —  dynamite  bombs 155 

killing  with  a  dirk  — identity 155 

death  by  poisoning  —  experts  disagree 275 

Clothing. — Burning  body  of  deceased 156 

opinion  as  to  identity  of  prisoner 219 

saw  him  running  from  the  scene 219 

witness  passed  a  man  —  thought  it  was  accused 2 

worn  by  deceased  at  the  time  of  killing 146,  147,  148,  149,  150 

Larceny.— Of  municipal  bonds  —  identity  of  prisoner 243 


INDEX.  501 

Prisoner  —  Continued.  gTC. 

Larceny. —  Saw  a  person  like  accused  in  Cincinnati. 243 

he  resembled  the  accused .  343 

of  a  package  of  money 71 

circumstantial  evidence  of  identity 71 

of  paper  money  —  presumption 566 

not  produced  in  court 566 

of  a  cow  —  identity  of  prisoner  and  cow 552 

Murder. — Identity  —  of  slave  —  by  his  pass 241 

lost  near  the  scene  of  the  homicide 241 

by  one  of  two  or  more  persons 242 

acts  and  preparations  for  attack 150 

if  uncertain  —  no  conviction ,  243 

though  positive  proof  that  one  did  it 242 

personal  identity  of  prisoner  —  size 233 

Promissory  Note. 

Forgery  of. — Identity —  forgery  of  note 408 

proof  of  forgery  —  rule  in  New  York 408 

alleged  maker  dead  —  expert  testimony 408 

testing  knowledge  of  witness 409 

comparison  —  testing  —  opinion  as  to  genuineness 409 

for  goods  sold  and  delivered 413 

indorsement  —  alleged  forgery 413 

signature  —  alleged  forgery 418 

proof  by  teller  of  the  bank 418 

giving  nature  of  handwriting 418 

Consideration. — Proof  of  consideration 420 

not  destroyed  —  receipt  —  signature 431 

proof  of  confession  of  execution 438 

identity  of  consideration  —  two  notes. ..  , 633 

action  on  one  —  bars  the  other 633 

note  destroyed  —  receipt 422 

identity  of  the  maker 453 

to  cashier  of  bank , . . . 93 

is,  in  effect,  payable  to  the  bank 93 

suit  in  name  of  the  bank 93 

Payment. — In  bank — and  indorsed 93 

identity  of  bank  and  cashier 93 

where  payable  —  silent  —  presumption 94 

payable  to  treasurer  of  railroad  company 97 

name  of  indorser  —  witness  —  defendant 98 

guaranty  of  collection 110 

action  on  —  statute  of  limitations 121 

acknowledgment  through  post-office 121 

father  and  son  —  same  name 123 

note  payable  to,  and  indorsed  by 122 

action  against  indorser  on 293 

genuineness  of  signature 386 


502  INDEX. 

R. 

Railroad.  SEC. 

Name. — Corporation  name  —  identity 97 

when  sued  by  another  name 97 

note  payable  to  treasurer  of 97 

Rape. 

Identity. — Prisoner  identified  by  his  clothing 11      73 

identified  in  court,  by  prosecutrix 608 

Real  Estate. 

Land.—  Land  —  identity  —  description  in  deed 480,  481,  483,  485,  487 

See  LAND. 

Reasonable  Doubts. 

As  to  guilt. — If  they  exist  —  the  prisoner  must  have  the  benefit 277 

the  true  definition  of 277 

corpus  delicti  —  to  be  proved  beyond 283 

Res  Adjudicata. 

Actions. — Rule  as  to  judgments 629 

identity  of  parties  and  subject-matter 629 

first  on  contract,  then  in  tort 630 

rule  in  New  York  and  Massachusetts 631 ,  632 

discussion  on  the  subject •  . . .  630 

Retailing. 

Liquors. — Identity  of  the  accused 69 

beer  on  Sunday  —  name  of  vendee 404 

identity  of  the  liquor  sold 197 

a  witness  said,  it  looked  "  reddish  " 197 

Riparian  Rights. 

On  streams. — Dividing  line  —  center  of  stream 491 

may  convey  the  soil  without  the  stream 491 

or  the  stream  without  the  soil 491 

See  LAND. 

River. 

Boundary. —  When  the  boundary  of  land 48,  481,  482 

dividing  line  —  riparian  possessors 481,  491 

rights  of  parties  —  riparians 482,  495 

See  LANDS  ;   RIPARIAN  RIGHTS. 

Robbery. 

Identity. —  Identity  of  defendant  on  second  conviction 140 

rule  in  England  —  under  statute 140 

prisoner  convicted  of  felony 140 

of  gold  and  silver  —  identity  of  accused 244 

identity  —  evidence  of  an  accomplice .    548 


INDEX.  503 

Robbery  —  Continued.  SEC  . 

Identity.  —  On  the  highway  in  England  ...................................  548 

testimony  against  a  co-defendant  .....................................  548 

identified  by  his  voice  .......................................  ........  553 


Sabbath. 

Age.  —  Profanation  of  the  day  ...........................................  76 

by  one  upwards  of  fourteen  years  of  age  .........................  ....  76 

age  must  be  proved  ................................  ................  76 

will  not  be  taken  for  granted  .......................................  76 

Sanity. 
Opinion.  —  Opinion  evidence  of  —  accused  party  ...........................  181 

in  a  contested  will  case  ........................................  181,  195 

of  the  testator  —  opinion  ..........................................     200 

opinion  of  —  in  case  of  incest  .......................................  201 

insanity  and  intoxication  ...............................  ..  .  ..........  227 

Sewer. 
Opinion.  —  Capacity  to  pass  off  the  water  .................................  214 

opinion  evidence  as  to  .....   .....................................  214 

* 

Signature. 

Proof  of  .—Proof  of  —  by  subscribing  witness  ................  368,  371,  372,  376 

See  HANDWRITING. 

Spelling. 

Names.  —  Defective  orthography  —  effect  ................................     84 

where  they  are  French  names  .  .......................................     84 

generally  —  in  names  of  foreigners  ...............  .  ...................     84 

misspelling  names  —  firm  names  ....................................     87 

judgment  by  default  —  certiorari  ....................................    87 

names  that  sound  alike.  ,  ,  ...........................................     90 

rule  of  idem  sonans  .................................................    90 

a  question  of  fact  for  the  jury  ....................................  90,     n. 

misspelling  of  name  —  land  patent  .................................  114 

names  —  in  election  cases  .....................................  129,  130,  132 

imitation  —  in  forgery  or  counterfeiting  ..............................  457 

forgery  —  detected  by  bad  spelling  ...................................  457 

Words.  —  In  verdicts  —  that  are  idem  sonans  ..............................  104 

"  tunn  "  for  "term,"  "  deth  "  for  "  death  "  ..........................  104 

'  '  sutinge  "  for  "  shooting  "  in  Louisiana  ...........................  '95 

words  that  are  not  idem  sonans  .......................................  105 

"  fist  "  degree  for  "  first  "  degree  ...................................  133 

"  impunitive  "  damages  for  '  '  punitive  "  damages  —  fatal  ......   .......  105 

"  guity  "  for  "  guilty,"  is  fatal  ........................................  105 

See  NAME;  IDEM  SONANS. 


504  INDEX. 

Street.  SBC. 

Condition. —  Sidewalk  in  dangerous  condition 202 

laid  down  of  rough  plank 202 

opinion  evidence  as  to  safety 202 

objects  on ,  calculated  to  frighten  horses 212 

as  to  defects  in  a  street  crossing 181,  191 

whether  the  street  was  dangerous 191 

as  to  the  safety  of  a  sidewalk 202 

capacity  of  sewer  to  carry  off  the  water 214 

opinion  as  to  a  culvert 182,     n. 

Subscribing  Witness. 

Signature.—  Proof  of  signature  by 368,  371,  372,  376 

See  HANDWRITING. 

Surety. 

Bonds. —  For  appeal  —  fictitious  signing 72 

signed  by  several  obligors 115 

subscribing  witness  to ,,,,,. 338,  339 

T. 

Teeth. 

Identity  by. —  Identity  of  dead  bodies  by 17,  247,  250 

recognized  twenty-three  years  after  burial 17,  235 

body  exhumed  and  teeth  recognized 17 

age  known  by  —  wisdom  teeth  —  coming  and  going 17,  251 

Webster's  trial  in  Boston 247 

identity  by  the  teeth 247,  250 

identity  by  —  when  body  burnt , 247,  253 

peculiarity  of  —  identity 255,     n. 

preserved  for  many  years 256 

artificial  teeth  —  identified  after  eleven  years 17,  257 

prints  of  —  on  stolen  fruit 61 

on  boards  taken  out  of  stolen  goods 61 

Telegraph. 

Highway. —  Telegraph  company  obstructing  highway 169 

photographic  view  —  rule  in  England 169 

Tichborne. 

Trial. —  Identity  sworn  to  by  eighty-five  witnesses 4,  394,  613,     n. 

handwriting  photographed 894,  613,     n. 

Tracks. 

Identity. —  Near  the  scene  of  a  crime 8,  9,  142,  220 

identity  of  persons  by 142 

near  the  scene  of  a  homicide • 142 

same  —  rule  held  in  California 143 

in  the  mud  —  near  the  scene  of  a  homicide  144 

mud  brought  into  court 144 


INDEX.  505 

Tracks  —  Continued.  SEC. 

Identity.  — To  test  the  track  —  excluded 144 

boots  —  witness  thought  would  fit  them 187 

and  mask  found  at  the  scene  of  murder 263 

establishing  the  fact  of  murder 377 

murder  of  a  whole  family 377 

as  evidence  of  identity 278 

to  be  carefully  examined 278 

conviction  by  evidence  of    278 

in  murder  trial  —  rule  of  evidence 279 

compelled  to  make  tracks  in  the  ashes 611 

Mrs.  Arden's  case  — tracks  in  the  snow 9 

in  a  corn  field  —  rule  in  North  Carolina 609 

compelled  to  put  his  foot  in  the  tracks 609 

opinion  as  to  wagon  tracks 217 

assault  made  in  the  night 9 

made  by  corduroy  pants 280 

Trunk. 

And  money. —  Stolen  —  with  money  in  it 30,  558 

circumstantial  evidence 558 

passed  of  a  similar  bill 558 

giving  caution  as  to  the  use  of  his  name 558 

V. 

Verdict. 

Spelling. —  Incorrect  orthography  —  effect 104 

See  SPELLING;  NAME;  IDEM  SONANS. 

Vessel. 

Identity. —  Account  for  money  to  build 411 

bill  rendered  for  advances 411 

approaching —  opinion  as  to  distance 221 

opinion  as  to  seaworthiness 211,     n. 

View. 

By  jury. —  When  permitted  —  when  not 581 

when  requested  —  rule  in  Massachusetts 581 

civil  cases  —  England  and  America. , 582 

statutes  on  the  subject 582 

proceeding  to  condemn  land 583 

Murder. —  Murder  —  rule  in  Arkansas  and  Georgia 585 

when  and  how  permitted 585 

Webster's  case  —  view  of  medical  college 583 

visiting  scene  of  murder 583 

constitutional  right  of  accused  to  be  present ...  584 

Burglary. —  Jury  viewing  the  premises 584 

jury  not  to  separate 584 

discussion  on  the  subject 584 

64 


506  INDEX. 

View  —  Continued.  gKC. 

Burglary. — Several  views  presented 583 

case  of  burglary  —  rule  in  Louisiana 586 

discussion  on  the  subject 586 

jurors  —  knowledge  acquired  by  inspection 587 

acquired  outside  of  court 587 

inspection  —  ancient  and  modern  rules 591 

Larceny. —  View  of  a  hog  —  in  larceny  —  error 583 

HigJiway. —  View  of  highway  —  rule  in  Massachusetts 588 

defective  highway  —  action  for  damages 588 

when  it  is  necessary  and  proper 588 

Bridge. —  View  of  railroad  bridge  —  damages 589 

photographic  view  —  obscene  views 590 

kept  in  store  for  sale 590 

physical  examination  —  when  not  allowed 591 

view  of  premises  —  in  ejectment 592 

Voice. 

Identity  by. —  Identity  of  person  by  the  voice 13 

case  of  arson  in  Texas 13,  14,  35 

attempt  at  arson  in  Massachusetts . .  .13,  14,  36 

may  be  identified  by  one  familiar  with  it 35,  36 

when  heard  but  once  before 36,  222 

burglar  identified  by 37,  222 

trial  of  defendant  for  murder  of  his  wife 37 

bank  robbery  —  identity  by  voice , 553 

confession  in  jail  —  identity 554 

w. 

Weapons. 

Of  crime. —  And  articles  found  recently  after 8,  9 

instruments  used  by  criminals. 60 

connecting  prisoner  with  the  transaction 60 

belonging  to  deceased  —  in  possession  of  accused 151 

Murder. —  Conviction  for  murder  —  rule  in  Nebraska 151 

death  by  cutting  with  a  knife 154 

may  be  identified  by  comparison 155 

Anarchists'  trial  —  dynamite  bombs 155 

improper  for  witness  to  experiment  with 155 

sheriff  discharging  a  pistol 155 

blood-stains  found  on  a  stick. 155 

weapon  must  be  identified 154 

club  —  with  hair  on  it 218 

killing  with  a  dirk  —  identity 231,  n.,  269 

killing  with  pistol  —  examined  by  jury 267 

found  one  hundred  yards  from  dead  body 269 

blood  found  on  —  tests 270,  n. 

death  by  poisoning 275 

where  experts  disagree 275 


INDEX.  507 

Weapons  —  Continued.  gKC . 

Murder. — Young  woman  killed  with  a  knife 279 

firearms  found  —  proximity  —  direction. 281 

wound  resulting  in  death 281 

gun  —  assassination  from  the  bushes 154 

deceased  shot  through  his  window. . , 263 

opinion  as  to  position  of  slayer 230 

See  MTJHDER. 

wm. 

Identity. —  Identity  of  the  thing  devised 39 

may  inquire  into  intention 39 

where  there  is  an  ambiguity 39 

when  a  codicil  is  a  forgery 405 

proof  of  signature  to 435 

takes  effect  from  the  death  of  testator 294 

lands  —  will  thirty  years  old  —  possession 295 

when  not  read  without  proof  of  execution 296 

Words. 

Sounds. —  Bad  spelling — words  that  sound  alike 84,    90 

rule  of  idem  sonans 104,  105..  138 

See  SPELLING;  NAMES;  IDEM  SONANS. 


. JUW  I 


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